GENOCIDE IN GAZAANALYSIS OF INTERNATIONAL LAW AND ITS APPLICATIONTO ISRAEL’S MILITARY ACTIONS SINCE OCTOBER 7, 2023

May 15, 2024

UNIVERSITY NETWORK FOR HUMAN RIGHTSINTERNATIONAL HUMAN RIGHTS CLINIC, BOSTON UNIVERSITY SCHOOL OF LAW
INTERNATIONAL HUMAN RIGHTS CLINIC, CORNELL LAW SCHOOLCENTRE FOR HUMAN RIGHTS, UNIVERSITY OF PRETORIALOWENSTEIN HUMAN RIGHTS PROJECT, YALE LAW SCHOOLEXECUTIVE SUMMARY
The prohibition of the crime of genocide is a peremptory norm of international law from which no
derogation is permitted.1 In light of the extraordinary implications of a finding that Israel may becommitting genocide against the Palestinian people in Gaza, the University Network for Human
Rights, the International Human Rights Clinic at Boston University School of Law, theInternational Human Rights Clinic at Cornell Law School, the Centre for Human Rights at the
University of Pretoria, and the Lowenstein Human Rights Project at Yale Law School haveconducted a thorough legal analysis of Israel’s acts since October 7, 2023, as situated in their
historical context.
As set forth in the Genocide Convention of 1948 and as interpreted by international courts andtribunals, the crime of genocide requires that a perpetrator kill, seriously harm, or inflict conditionsof life calculated to bring about the destruction of a group, in whole or in part, with the intent todestroy the group as such. 2 The Genocide Convention and international jurisprudence form thebasis of this report’s analysis of Israel’s conduct during the course of its military operation in Gaza
since October 7, 2023.
After reviewing the facts established by independent human rights monitors, journalists, andUnited Nations agencies, we conclude that Israel’s actions in and regarding Gaza since October 7,
2023, violate the Genocide Convention. Specifically, Israel has committed genocidal acts ofkilling, causing serious harm to, and inflicting conditions of life calculated to bring about thephysical destruction of Palestinians in Gaza, a protected group that forms a substantial part of thePalestinian people. Between October 7, 2023, and May 1, 2024, Israel has killed at least 34,568
Palestinians and injured 77,765 other Palestinians in Gaza.3 These figures in total comprise morethan 5 percent of Gaza’s population, 4 with over 2 percent of Gaza’s children killed or injured. 5
Approximately 14,500 of the Palestinians killed in Gaza have been children. 6 Israel killed morechildren in the first four months of its assault than in all of the world’s conflicts in the past four

1

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23 (May 28); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda),
para. 64, 2006 I.C.J Rep. 168 (Dec. 19); Application of the Convention on the Prevention and Punishment of the Crimeof Genocide (Bosn. & Herz. v. Yugoslavia), Preliminary Objections Judgment, 1996 I.C.J. 595, para. 31 (July 11).
2
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, art. II
3
Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160. As of April 30, 2024, out of thistotal number of Palestinians killed, 24,868 have been identified. This includes 10,006 men, 4,959 women, 7,797
children, and 1,924 elderly. Hostilities in the Gaza Strip and Israel – Reported Impact | Day 217, OCHA (May 10,2024), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-217.
4
As of August 2023, the population of Gaza was estimated to be approximately 2.17 million people. Where We Work,UNRWA, https://www.unrwa.org/where-we-work/gaza-strip (last visited May 1, 2024).
5Over 2% of Gaza’s Child Population Killed or Injured in Six Months of War, SAVE THE CHILDREN (Apr. 4, 2024),
https://www.savethechildren.net/news/over-2-gaza-s-child-population-killed-or-injured-six-months-war.
6
Press Release, OHCHR, Onslaught of Violence Against Women and Children in Gaza Unacceptable: UN Experts,(May 6, 2024), https://www.ohchr.org/en/press-releases/2024/05/onslaught-violence-against-women-and-childrengaza-unacceptable-un-experts.

2years combined.7 Israeli forces have killed Palestinians regardless of their protected status underinternational law, with the current bombardment constituting the deadliest conflict for journalists
ever recorded8 and the number of UN personnel killed reaching a degree “never seen in . . .
history.”9 Israel’s military operation has destroyed up to 70 percent of homes in Gaza, and has
decimated civilian infrastructure, including hospitals, schools, universities, UN facilities, andcultural and religious heritage sites. 10 A staggering 1.7 million civilians—over 75 percent ofGaza’s population—have been forcibly displaced as a result of Israel’s military offensive.11
Civilians in Gaza face catastrophic levels of hunger and deprivation due to Israel’s restriction on,
and failure to ensure adequate access to, basic essentials of life, including food, water, medicine,and fuel.12
Israel’s genocidal acts in Gaza have been motivated by the requisite genocidal intent, as evidenced
in this report by the statements of Israeli leaders, the character of the State and its military forces’
conduct against and relating to Palestinians in Gaza, and the direct nexus between them. As thisreport details,13 officials at all levels of Israeli government, up to and including the Prime Minister,
have made remarks that not only express blatant and unequivocal dehumanization and cruelty

7

Clarissa-Jan Lim, More Children Killed in Gaza in Four Months than in Four Years of War Globally: Report,
MSNBC (Mar. 14, 2024), https://www.msnbc.com/top-stories/latest/death-toll-children-gaza-israel-rcna143269
8
Gaza War 'Most Dangerous Ever' for Journalists, Says Rights Group, REUTERS (Dec. 21, 2023)
https://www.reuters.com/world/middle-east/gaza-war-most-dangerous-ever-journalists-says-rights-group-2023-1221.
9
Antonio
Guterres(@antonioguterres),
X
(Dec.
22,
2023,
8:01
PM),
https://x.com/antonioguterres/status/1738364044979896821?lang=en.
10
Gaza: Rights Experts Condemn AI Role in Destruction by Israeli Military, U.N. NEWS (Apr. 15, 2024),
https://news.un.org/en/story/2024/04/1148561; Gaza: UN Experts Decry ‘Systemic Obliteration’ of Education
System, U.N. NEWS (Apr. 18, 2024), https://news.un.org/en/story/2024/04/1148716; Gaza: ‘Systematic Dismantlingof Healthcare Must End’ Says WHO, U.N. NEWS (Apr. 6, 2024), https://news.un.org/en/story/2024/04/1148316; Joint
World Bank, UN Report Assesses Damage to Gaza’s Infrastructure, WORLD BANK (Apr. 2, 2024),
https://www.worldbank.org/en/news/press-release/2024/04/02/joint-world-bank-un-report-assesses-damage-to-gazas-infrastructure.
11
Situation Report #103 on the Situation in the Gaza Strip and the West Bank, including East Jerusalem, UNRWA(Apr. 23, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-103-situation-gaza-strip-and-westbank-including-east-Jerusalem. See also Hostilities in the Gaza Strip and Israel – Reported Impact | Day 203, OCHA
(Apr. 26, 2024), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-203.
12
INTEGRATED FOOD SECURITY PHASE CLASSIFICATION, GAZA STRIP: ACUTE FOOD INSECURITY SITUATION FOR 15
FEBRUARY - 15 MARCH 2024 AND PROJECTION FOR 16 MARCH - 15 JULY 2024 (Mar. 18, 2024),
https://www.ipcinfo.org/ipc-country-analysis/details-map/en/c/1156872/?iso3=PSE; Emergency: State of Palestine,
World Food Programme [hereinafter WFP], https://www.wfp.org/emergencies/palestine-emergency (last visited May
1, 2024); Press Release, OHCHR, Comment by UN High Commissioner for Human Rights Volker Türk on the Risk
of Famine in Gaza (Mar. 19, 2024), https://www.ohchr.org/en/statements-and-speeches/2024/03/comment-un-highcommissioner-human-rights-volker-turk-risk-famine; Ramesh Rajasingham (Director of OCHA Coordination
Division, on behalf of Under-Secretary General for Humanitarian Affairs and Emergency Relief Coordinator, Mr.
Martin Griffiths), Updating the Security Council on Food Security Risks in Gaza, OCHA (Feb. 27, 2024),
https://www.ochaopt.org/content/mr-ramesh-rajasingham-updating-security-council-food-security-risks-gaza; Gaza:
Worst Famine Fears Realised as 10th Child Reportedly “Starves to Death”, U.N. NEWS (Mar. 1, 2024),
https://news.un.org/en/story/2024/03/1147112; INSECURITY INSIGHT, FLASH ANALYSIS REPORT: OVER FIVE MONTHSOF
ATTACKSON
FOOD SECURITY IN
GAZA (Mar.
2024),
https://insecurityinsight.org/wpcontent/uploads/2024/03/Flash-Analysis-Over-Five-Months-of-Attacks-on-Food-Security-in-Gaza.pdf.
13
See Section 3.b.i of this report.

3

against Palestinians in Gaza and elsewhere, but also explicitly reflect intentions to destroy andexterminate Palestinians as such. The patterns of conduct of Israeli military forces in Gaza further
reinforce the finding of Israel’s genocidal intent.14
This report documents its findings by drawing from a diverse range of credible sources, including
reports by United Nations and aid agencies, investigations by human rights organizations, media
reports, and public statements and testimonies. In determining violations of the Genocide
Convention, our analysis is guided by established principles of international law, international
jurisprudence, widespread state practice accepted as customary law, and the Convention’s drafting
history. Additionally, our report draws on Gaza’s history leading to the present, in recognition that
genocide rarely occurs as a single moment but is rather an unfolding result of processes andpractices over time.
Israel’s violations of the international legal prohibition of genocide amount to grave breaches ofperemptory norms of international law that must cease immediately. These violations also giverise to obligations by all other States: to refrain from recognizing Israel’s breaches as legal or
taking any actions that may constitute complicity in these breaches; and to take positive steps tosuppress, prevent, and punish the commission by Israel of further genocidal acts against thePalestinian people in Gaza.
The facts in this report are current as of May 1, 2024. Between its finalization and publication,
reports emerged of additional, egregious abuses by Israel against Palestinians in the southern cityof Rafah and elsewhere,15 where more than a million Palestinians are seeking refuge.16 Thesedevelopments, though not reflected in the report, further demonstrate Israel’s ongoing genocidal
conduct and intent, and underscore the urgency with which the international community must act.

14

See Section 3.b.ii of this report.
See, e.g., Press Release, OHCHR, Israel/Occupied Palestinian Territory: Rafah threat is inhumane, says UN Human
Rights Chief (May 6, 2024); Targeting Rafah Could Lead to Slaughter, Warns UN Aid Agency, U.N. NEWS (May 3,2024), https://news.un.org/en/story/2024/05/1149306.
16
See Occupied Palestinian Territory, OCHA, https://www.ochaopt.org (updated regularly).
15

4

TABLE OF CONTENTSPART 1: INTRODUCTION............................................................................................................... 6
PART 2: BACKGROUND............................................................................................................... 12
PART 3: LEGAL STANDARDS – THE GENOCIDE CONVENTION ........................................ 22
1. The crime of genocide .............................................................................................................. 23
1.a. Genocidal acts .................................................................................................................... 24
1.b. Genocidal intent................................................................................................................. 27
2. Incitement to genocide .............................................................................................................. 32
2.b. Direct and public incitement by State actors ..................................................................... 33
2.c. Duty to prevent and punish direct and public incitement .................................................. 35
PART 4: FACTS AND ANALYSIS ................................................................................................ 36
3. Evidence that Israel is committing genocide in Gaza under Article II of the Genocide
Convention ................................................................................................................................ 36
3.a. Israel’s genocidal acts in Gaza .......................................................................................... 36
3.b. Evidence of Israel’s genocidal intent ................................................................................ 57
3.d. Addressing Israel’s arguments about genocidal intent ...................................................... 69
3.f. Analysis: Israel’s acts in and statements about Gaza amount to genocide ........................ 83
4. Analysis: Israel is committing an act of direct and public incitement of genocide, in violation of
Article III(c) of the Genocide Convention ................................................................................ 86
5. Analysis: Israel has failed to punish and prevent incitement to genocide ................................ 88
PART 5: LEGAL CONSEQUENCES AND OBLIGATIONS FOR THIRD STATES .................. 92
6. Duties of third States generated as a result of Israel’s violations of its obligations under the
Genocide Convention................................................................................................................ 94
6.a. Duty of non-recognition .................................................................................................... 94
6.b. Duty to refrain from aiding or assisting violations of the prohibition of genocide ........... 96
6.c. Positive duty to cooperate through lawful means to end violations of the prohibition of
genocide ................................................................................................................................ 97
7. Legal consequences and obligations of States under the Genocide Convention ...................... 98
7.a. The duty under the Genocide Convention to prevent and punish genocide ...................... 98
7.b. The duty not to be complicit in genocide ........................................................................ 102
8. Third States’ standing to invoke responsibility triggered by violations of the prohibition on
genocide .................................................................................................................................. 104
PART 6: CONCLUSION ............................................................................................................... 105

5

PART 1: INTRODUCTION
1.

The crime of genocide is among the gravest crimes recognized in international law. It refers
to specific acts committed against a group with the intent to destroy that group, in whole
or in part. In recognition of the gravity of the crime of genocide and the extraordinary
implications of a potential finding that Israel is committing genocide in Gaza, theUniversity Network for Human Rights, the International Human Rights Clinic at Boston
University School of Law, the International Human Rights Clinic at Cornell Law School,
the Centre for Human Rights at the University of Pretoria, and the Lowenstein Human
Rights Project at Yale Law School have conducted a thorough legal analysis of Israel’s
acts against the Palestinians in Gaza since October 7, 2023, as situated in their historicalcontext.

2.

The scope of the legal analysis in this report addresses the question of whether the actions
taken by Israel in and regarding Gaza since October 7, 2023, meet the definition of
genocide under international law. Specifically, it outlines the elements of the crimes of
genocide, sets out the credibly documented acts by Israeli military forces in Gaza andstatements of officials within the Israeli government, and analyzes these facts in light ofinternational legal standards and international jurisprudence. The report concludes that
Israel’s conduct in and regarding Gaza following the Hamas attacks in Israel on October 7,
2023, amounts to breaches of the international legal prohibition of genocide.

3.

We condemn all violations of international law committed by all parties, including
violations committed by Hamas against Israeli civilians on or since October 7, 2023. We
further emphasize that violations of international law by any party do not justify thecommission of other violations of international law, including and especially theparamount crime of genocide.

4.

The information in this report is current as of May 1, 2024.1 Between the time of finalizing
this report and its public release, an Israeli incursion into the southern city of Rafah has
caused additional civilian deaths, devastation, and destruction.2 These ongoingdevelopments in Gaza further reinforce this report’s findings and conclusions andunderscore the urgent need for action to protect Palestinian civilians.

1

The U.N. Office for the Coordination of Humanitarian Affairs (OCHA) publishes regular comprehensive updates on
the situation in Gaza (and the rest of the Occupied Palestinian Territories). For the latest reported updates, please visit:
Occupied Palestinian Territory, U.N. OFF. FOR THE COORDINATION HUMAN. AFF. [hereinafter OCHA],
https://www.ochaopt.org.
2See, e.g., Press Release, OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS [hereinafter OHCHR],
Israel/Occupied Palestinian Territory: Rafah threat is inhumane, says UN Human Rights Chief (May 6, 2024);
Targeting Rafah Could Lead to Slaughter, Warns UN Aid Agency, U.N. NEWS (May 3, 2024),
https://news.un.org/en/story/2024/05/1149306.

6

5.

Between October 7, 2023, and May 1, 2024, Israel has killed at least 34,568 Palestinians
and injured 77,765 other Palestinians in Gaza.3 These figures in total comprise more than
5 percent of Gaza’s population,4 with over 2 percent of Gaza’s children killed or injured.5
Approximately 14,500 of the Palestinians killed in Gaza during this period have beenchildren,6 with at least 1,000 more children losing a limb or multiple limbs, many byamputation without anesthetic.7 As of April 29, 2023, more than 8,000 Palestinians werereported “missing or under the rubble.”8 Over the course of Israel’s ongoing assault on
Gaza, representatives of the Israeli government have repeatedly made statements evincing
genocidal intent. This genocidal intent is further manifested in the nature and conduct ofIsrael’s military operation, which has destroyed up to 70 percent of homes in Gaza, as wellas the majority of its civilian infrastructure, including hospitals, schools, universities,
United Nations (UN) facilities, and more.9 A staggering 1.7 million civilians—over 75
percent of Gaza’s population—have been forcibly displaced as a result of Israel’s military
offensive.10 Famine has developed in North Gaza, while the population in the rest of Gaza
faces catastrophic levels of hunger and deprivation due to Israel’s restriction on, and failure

3

Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160. As of April 30, 2024, out of thistotal number of Palestinians killed, 24,868 have been identified. This includes 10,006 men, 4,959 women, 7,797
children, and 1,924 elderly. Hostilities in the Gaza Strip and Israel – Reported Impact | Day 217, OCHA (May 10,2024), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-217.
4
As of August 2023, the population of Gaza was estimated to be approximately 2.17 million people. Where We Work,
U.N. RELIEF AND WORKS AGENCY FOR PALESTINIAN REFUGEES IN THE NEAR EAST [hereinafter UNRWA]
https://www.unrwa.org/where-we-work/gaza-strip (last visited May 1, 2024).
5Over 2% of Gaza’s Child Population Killed or Injured in Six Months of War, SAVE THE CHILDREN (Apr. 4, 2024),
https://www.savethechildren.net/news/over-2-gaza-s-child-population-killed-or-injured-six-months-war.
6
Press Release, OHCHR, Onslaught of Violence Against Women and Children in Gaza Unacceptable: UN Experts,(May 6, 2024), https://www.ohchr.org/en/press-releases/2024/05/onslaught-violence-against-women-and-childrengaza-unacceptable-un-experts.
7
UNICEF: Gaza Strip Most Dangerous Place in the World for Children, EURONEWS (Feb. 12, 2023),
https://www.euronews.com/2023/12/02/unicef-gaza-strip-most-dangerous-place-in-the-world-for-children. See also
Sarah Ferguson, More than 13,000 Children Reported Dead in Gaza as Famine Nears, U.N. CHILDREN’S FUND
[hereinafter UNICEF] (Mar. 19, 2024), https://www.unicefusa.org/stories/more-13000-children-reported-dead-gazafamine-nears; ‘Ten Weeks of Hell’ for Children in Gaza: UNICEF, U.N. NEWS (Dec. 19, 2023),
https://news.un.org/en/story/2023/12/1144927.
8
Press Release, OHCHR, Onslaught of Violence Against Women and Children in Gaza Unacceptable: UN Experts(May 6, 2024), https://www.ohchr.org/en/press-releases/2024/05/onslaught-violence-against-women-and-childrengaza-unacceptable-un-experts.
9Gaza: Rights Experts Condemn AI Role in Destruction by Israeli Military, U.N. NEWS (Apr. 15, 2024),
https://news.un.org/en/story/2024/04/1148561; Gaza: UN Experts Decry ‘Systemic Obliteration’ of Education
System, U.N. NEWS (Apr. 18, 2024), https://news.un.org/en/story/2024/04/1148716; Gaza: ‘Systematic Dismantlingof Healthcare Must End’ Says WHO, U.N. NEWS (Apr. 6, 2024), https://news.un.org/en/story/2024/04/1148316; Joint
World Bank, UN Report Assesses Damage to Gaza’s Infrastructure, WORLD BANK (Apr. 2, 2024),
https://www.worldbank.org/en/news/press-release/2024/04/02/joint-world-bank-un-report-assesses-damage-to-gazas-infrastructure.
10
Situation Report #103 on the Situation in the Gaza Strip and the West Bank, including East Jerusalem, UNRWA(Apr. 23, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-103-situation-gaza-strip-and-westbank-including-east-Jerusalem. See also Hostilities in the Gaza Strip and Israel – Reported Impact | Day 203, OCHA
(Apr. 26, 2024), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-203.

7

to ensure adequate access to, basic essentials of life, including food, water, medicine, andfuel.11 Twenty-eight children have died of starvation and dehydration and “5 percent ofchildren under age 2 were found to be acutely malnourished” as of April 1, 2023.12
According to the UN Secretary General, “[f]our out of five of the hungriest people
anywhere in the world are in Gaza.”13
6.

On January 26, 2024, the International Court of Justice (ICJ) issued a provisional measuresorder that found “a real and imminent risk” that Israel is in violation of the rights ofPalestinians in Gaza under the Genocide Convention.14 The Court ordered Israel to take“all measures within its power to prevent the commission of acts”15 that violate theprohibition of genocide and “to prevent and punish direct and public incitement to commit”
genocide against Palestinians in Gaza.16 The Court issued a second provisional measuresorder on March 28, 2024, in which it unanimously instructed Israel to “take all necessaryand effective measures to ensure, without delay, the unhindered provision of urgently
needed basic services and humanitarian assistance . . . to Palestinians throughout Gaza.”17

7.

Leading authoritative UN experts have warned of the risk of genocide, or asserted that
genocide is actively being perpetrated, by Israel against Palestinians in Gaza. The current
UN Special Rapporteur on the Situation of Human Rights in Palestinian Territories
Occupied since 1967, Francesca Albanese, stated in a report to the UN Human Rights
Council, “[b]y analysing the patterns of violence and Israel’s policies in its onslaught on

11

INTEGRATED FOOD SECURITY PHASE CLASSIFICATION, GAZA STRIP: ACUTE FOOD INSECURITY SITUATION FOR 15
FEBRUARY - 15 MARCH 2024 AND PROJECTION FOR 16 MARCH - 15 JULY 2024 (Mar. 18, 2024),
https://www.ipcinfo.org/ipc-country-analysis/details-map/en/c/1156872/?iso3=PSE; Emergency: State of Palestine,
World Food Programme [hereinafter WFP], https://www.wfp.org/emergencies/palestine-emergency (last visited May
1, 2024); Press Release, OHCHR, Comment by UN High Commissioner for Human Rights Volker Türk on the Risk
of Famine in Gaza (Mar. 19, 2024), https://www.ohchr.org/en/statements-and-speeches/2024/03/comment-un-highcommissioner-human-rights-volker-turk-risk-famine; Ramesh Rajasingham (Director of OCHA Coordination
Division, on behalf of Under-Secretary General for Humanitarian Affairs and Emergency Relief Coordinator, Mr.
Martin Griffiths), Updating the Security Council on Food Security Risks in Gaza, OCHA (Feb. 27, 2024),
https://www.ochaopt.org/content/mr-ramesh-rajasingham-updating-security-council-food-security-risks-gaza; Gaza:
Worst Famine Fears Realised as 10th Child Reportedly “Starves to Death”, U.N. NEWS (Mar. 1, 2024),
https://news.un.org/en/story/2024/03/1147112; INSECURITY INSIGHT, FLASH ANALYSIS REPORT: OVER FIVE MONTHSOF
ATTACKSON
FOOD SECURITY IN
GAZA (Mar.
2024),
https://insecurityinsight.org/wpcontent/uploads/2024/03/Flash-Analysis-Over-Five-Months-of-Attacks-on-Food-Security-in-Gaza.pdf.
12
Gaza: Israel’s Imposed Starvation Deadly for Children, HUM. RTS. WATCH (Apr. 9, 2024),
https://www.hrw.org/news/2024/04/09/gaza-israels-imposed-starvation-deadly-children.
13
António Guterres (U.N. Secretary General) (@antonioguterres), X (Dec. 23, 2023, 10:01 AM),https://x.com/antonioguterres/status/1738575438136680790.
14
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S.
Afr. v. Isr.), Provisional Measures, 2024 I.C.J., para. 74 (Jan. 26) [hereinafter S. Afr. v. Isr., First Provisional Measures
Order].
15
Id. at paras. 78.
16
Id. at paras. 78-79.
17
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S.
Afr. v. Isr.), Provisional Measures, 2024 I.C.J., para. 51(2)(a) (Mar. 28) [hereinafter S. Afr. v. Isr., Second Provisional
Measures Order].

8Gaza . . . there are reasonable grounds to believe that the threshold indicating Israel’s
commission of genocide is met.”18
8.

Many other UN Special Rapporteurs have issued similar warnings of genocide in Gaza. On
October 19, 2023, in a joint statement following an Israeli strike on a hospital that killed
470 civilians, nine UN Special Rapporteurs warned, “[t]here is an ongoing campaign byIsrael resulting in crimes against humanity in Gaza . . . there is also a risk of genocide
against the Palestinian People.”19 On November 2, 2023, nine UN Special Rapporteursraised the alarm that “[t]ime is running out to prevent genocide and human catastrophe inGaza,”20 and on November 16, 2023, 15 UN Special Rapporteurs and 21 members of UN
Working Groups described Gaza as “a genocide in the making.” 21 On November 20, 2023,
Reem Alsalem, the UN Special Rapporteur on Violence Against Women and Girls, its
causes and consequences, expressed concern that “thousands [in Gaza] have become
victims of . . . an unfolding genocide.”22 On January 14, 2024, the Special Rapporteur on
the Right to Health, Tlaleng Mofokeng, characterized Israel’s occupation as “genocidal.” 23
In a landmark statement issued on February 23, 2024, a group of UN experts called for “anarms embargo on Israel,” recognizing that “Israel has repeatedly failed to comply withinternational law.”24 On February 27, 2024, the UN Special Rapporteur on the Right toFood, Michael Fakhri, stated that Israel is “intentionally” starving Palestinians, calling this“a situation of genocide.”25

9.

Senior UN officials and heads of multiple UN agencies have also expressed concern overIsrael’s violations of Palestinians’ human rights Gaza. For example, on November 6, 2023,
UN Secretary General António Guterres called the situation in Gaza a “crisis ofhumanity.”26 On December 6, 2023, the UN High Commissioner for Human Rights, Volker

18

Anatomy of a Genocide: Report of the Special Rapporteur on the Situation of Human Rights in Palestinian
Territories Occupied since 1967, Francesca P. Albanese, Summary, U.N. Doc. A/HRC/55/73 (advanced unedited
version) (Mar. 25, 2024), https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessionsregular/session55/advance-versions/a-hrc-55-73-auv.pdf.
19
Press Release, OHCHR, Gaza: UN Experts Decry Bombing of Hospitals and Schools as Crimes Against Humanity,
Call for Prevention of Genocide (Oct. 19, 2023), https://www.ohchr.org/en/press-releases/2023/10/gaza-un-expertsdecry-bombing-hospitals-and-schools-crimes-against-humanity.
20
Press Release, OHCHR, Gaza is ‘Running Out of Time’ - UN Experts Warn, Demanding a Ceasefire to Prevent
Genocide (Nov. 2, 2023), https://www.ohchr.org/en/press-releases/2023/11/gaza-running-out-time-un-experts-warndemanding-ceasefire-prevent-genocide.
21
Press Release, OHCHR, Gaza: UN Experts Call on International Community to Prevent Genocide Against thePalestinian People (Nov. 16, 2023), https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-callinternational-community-prevent-genocide-against.
22
Press Release, OHCHR, Women Bearing the Brunt of Israel-Gaza Conflict: UN Expert (Nov. 20, 2023),
https://www.ohchr.org/en/press-releases/2023/11/women-bearing-brunt-israel-gaza-conflict-un-expert.
23
Dr. Tlaleng Mofokeng (Special Rapporteur on the Right to Health) (@drtlaleng), X (Jan. 14, 2024, 3:52 AM),https://x.com/drtlaleng/status/1746455162481250770.
24
Press Release, OHCHR, Arms Exports to Israel Must Stop Immediately: UN Experts (Feb. 23, 2024),
https://www.ohchr.org/en/press-releases/2024/02/arms-exports-israel-must-stop-immediately-un-experts.
25
Nina Lakhani, Israel is Deliberately Starving Palestinians, UN Rights Expert Says, THE GUARDIAN (Feb. 27, 2024),
https://www.theguardian.com/world/2024/feb/27/un-israel-food-starvation-palestinians-war-crime-genocide.
26
Press Release, UN Secretary-General, Press Conference by Secretary-General António Guterres at United Nations
Headquarters, SM/SM/22021 (Nov 6, 2023), https://press.un.org/en/2023/sgsm22021.doc.htm.

9Türk, referred to the situation in Gaza as “catastrophic,” 27 and on December 12, 2023, theCommissioner-General of the UN Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA), Philippe Lazzarini, called Israel’s assault on Gaza “a war of all thesuperlative, everything is unprecedented.” 28 On January 10, 2024, the Director General of
the World Health Organization (WHO), Tedros Adhanom Ghebreyesus, called thehumanitarian conditions in Gaza “indescribable.”29 On October 28, 2023, the former
director of the New York Office of the High Commissioner of Human Rights (OHCHR),
Craig Mokhiber, called the events in Gaza a “text-book case of genocide.”30
10.

Leading human rights organizations and scholars of international law and genocide studies
have expressed grave concerns about the genocidal nature of Israel’s actions in Gaza. For
example, on October 15, 2023, over 800 scholars and practitioners of international law,
conflict studies, and genocide studies issued a public statement “warning of the possibilityof genocide being perpetrated by Israeli forces against Palestinians in Gaza.”31 On October18, 2023, the Center for Constitutional Rights (CCR) published an emergency legal
briefing that concluded, “Israel is attempting to commit, if not actively committing,genocide in the occupied Palestinian territory, and specifically against the Palestinian
people in the Gaza Strip,” and cautioned against U.S. complicity in genocide. 32 On
December 9, 2023, 55 scholars of the Holocaust, genocide, and mass violence warned “ofthe danger of genocide in Israel’s attack on Gaza.”33 The International Federation for
Human Rights (FIDH) released a statement on December 12, 2023, recognizing that
“Israel’s actions against the Palestinian people constitute an unfolding genocide” andwarning other States and individuals that rendering support or assistance to Israel would
constitute complicity in genocide. 34 On December 20, 2023, over a hundred global humanVolker Türk (UN High Comm’r Hum. Rts.), Opening statement by UN High Commissioner for Human Rights
Volker Türk at press conference ahead of Human Rights Day (Dec. 6, 2023), https://www.ohchr.org/en/statementsand-speeches/2023/12/opening-statement-un-high-commissioner-human-rights-volker-turk.
28
UNRWA (@UNRWA), X (Dec. 12, 2023, 2:46 PM), https://x.com/UNRWA/status/1734585541591486755.
29
Tedros Adhanom Ghebreyesus (Director General of the WHO), Statement at Virtual Press Conference on Global
Health Issues (Jan. 10, 2024), https://www.who.int/publications/m/item/virtual-press-conference-on-global-healthissues-transcript-10-january-2024.
30
Letter from Craig Mokhiber to Volker Türk (U.N. High Comm’r Hum. Rts.) (Oct. 28, 2023),
https://s3.documentcloud.org/documents/24103463/craig-mokhiber-resignation-letter.pdf.
31
Public Statement, Third World Approaches to Int’l L. Rev. (TWAILR), Scholars Warn of Potential Genocide in
Gaza (Oct. 15, 2023), https://twailr.com/public-statement-scholars-warn-of-potential-genocide-in-gaza/.
32
CTR. FOR CONST. RTS., ISRAEL’S UNFOLDING CRIME OF GENOCIDE OF THE PALESTINIAN PEOPLE & U.S. FAILURE TOPREVENTANDCOMPLICITYIN
GENOCIDE,
p.
1
(Oct.
18,
2023),
https://ccrjustice.org/sites/default/files/attach/2023/10/Israels-Unfolding-Crime_ww.pdf.
33
Statement, Raz Segal, Contending Modernities, Statement of Scholars in Holocaust and Genocide Studies on Mass
Violence in Israel and Palestine since 7 October (Dec. 9, 2023), https://contendingmodernities.nd.edu/globalcurrents/statement-of-scholars-7-october/.
34
Press Release, Fédération Internationale pour les Droits Humains [hereinafter FIDH], The Unfolding Genocide
Against the Palestinians Must Stop Immediately (Dec. 12, 2023), https://www.fidh.org/en/region/north-africa-middleeast/israel-palestine/the-unfolding-genocide-against-the-palestinians-must-stop-immediately. See generally FIDH,
Resolution on Israel’s Unfolding Crime of Genocide and Other Crimes in Gaza and Against the Palestinian People(Dec. 12, 2023),
https://www.fidh.org/IMG/pdf/fidh_resolution_on_israel_s_unfolding_crime_of_genocide_and_other_crimes_in_ga
za_and_against_the_palestinian_people.pdf.
27

10

rights organizations and defenders called on the International Criminal Court (ICC) to takemeasures to prevent “the continuing commission by Israeli officials of genocide.” 35 The
Lemkin Institute for Genocide Prevention issued a statement on December 29, 2023,
calling the Israeli attack on Gaza a genocide. 36 The Lemkin Institute also issued asubsequent urgent warning on March 30, 2024 of the “imminent genocide of Palestinians
in Rafah,” which it called “the last sanctuary for a population facing genocide in the formof attrition and forced displacement.”37 On January 24, 2024, more than 250 humanitarianand human rights organizations called for the suspension of arms transfers to Israel,38 andon February 19, 2024, Amnesty International warned European Union officials of the“worrying signs of genocide” and the “abundance of irrefutable evidence concerning
Israel’s violations of international humanitarian law and the ICJ’s [provisional measures]
order.”39
11.

This report analyzes whether Israel’s acts or omissions in and regarding Gaza since October
7, 2023, amount to the crimes of genocide within the framework of the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The
report begins in Part 2 with a brief historical background to the present events in Gaza, inrecognition that genocide rarely occurs as a single event but is often a process informed byhistory that is carried out in progressive stages. Part 3 outlines the definition and elementsof the crimes of genocide and incitement to genocide under the Genocide Convention andrelevant jurisprudence. Part 4 analyzes whether Israel is in violation of its obligations under
the Genocide Convention. Finally, Part 5 outlines the legal consequences and theobligations generated for third States as a result of a finding that Israel has violated theinternational law prohibition of genocide.

Letter from Int’l Network for Econ. Soc. & Cultural Rts. [hereinafter ESCR-Net] on behalf of over one hundredorganizations and human rights defenders to Karim Khan, Prosecutor of the International Criminal Court (Dec. 20,2023), https://www.escr-net.org/sites/default/files/attachments/letter_icc_prosecutor_20dec2023.pdf; See also Over a
Hundred Organizations and Human Rights Defenders Calling for Arrest Warrants for Israeli officials to Prevent
Genocide Against Palestinians, ESCR-NET (Dec. 20, 2023), https://www.escr-net.org/news/2023/over-hundredorganizations-and-human-rights-defenders-calling-arrest-warrants-israeli.
36Statement on Why We Call the Israeli Attack on Gaza Genocide, LEMKIN INSTITUTE FOR GENOCIDE PREVENTION[hereinafter LEMKIN INSTITUTE] (Dec. 29, 2023), https://www.lemkininstitute.com/statements-new-page/statementon-why-we-call-the-israeli-attack-on-gaza-genocide.
37
SOS Alert Gaza – Update #6 – The Genocidal Attack on Rafah, LEMKIN INSTITUTE (Mar. 30, 2024),
https://www.lemkininstitute.com/_files/ugd/547226_3f7f3adbc4b949dcb9970e7bbf4f088f.pdf.
38
Letter from Amnesty Int’l to Josep Borell Fontelles, European Union High Representative for Foreign Affairs andSecurity Policy & Vice-President European External Action Service, and Foreign Affairs Ministers of the European
Union (EU) Member States on Worrying Signs of Genocide in Gaza and Impending Invasion of Rafah (Feb. 15, 2024)[hereinafter Letter from Amnesty Int’l to EU Foreign Ministers], https://www.amnesty.eu/wpcontent/uploads/2024/02/Amnesty-International-Letter-Ahead-of-the-Foreign-Affairs-Council-on-Worrying-Signsof-Genocide-in-Gaza-and-Impending-Invasion-of-Rafah-15-February-2024.pdf; see also More than 250
Humanitarian and Human Rights Organisations Call to Stop Arms Transfers to Israel and Palestinian Armed Groups,
AMNESTY INT’L (Jan. 24, 2024), https://www.amnesty.org/en/latest/news/2024/01/more-than-250-humanitarian-andhuman-rights-organisations-call-to-stop-arms-transfers-to-israel-palestinian-armed-groups/.
39
Letter from Amnesty Int’l to EU Foreign Ministers.
35

11

PART 2: BACKGROUND
12.

Since October 7, 2023, Israel has escalated its decades-long violence against Palestinians
in Gaza. At the time of writing, Israel has killed at least 34,568 Palestinians in Gaza,40 ofwhom over 40 percent have been children.41 This section describes Israel’s historicalpolicies and decades-long practices of dehumanization, mass displacement, collective
punishment, and occupation of Palestinians, decades of which have laid the groundwork
for Israel’s present violence against Palestinians in Gaza.

13.

Before October 7, 2023, Gaza was home to 2.17 million Palestinians,42 nearly half of whom
are children.43 Over 1.5 million Palestinians in Gaza were refugees before October 7,44
including many Palestinians and descendants of Palestinians who were forcibly displaced
from their homes during and in the aftermath of the war that led to the 1948 establishmentof the State of Israel.45

14.

During the period between 1947 and 1949, in the war known to Palestinians as the“Nakba,” or “catastrophe” in Arabic, Zionist armed forces killed over 15,000 Palestinians,
destroyed over 400 Palestinian villages, and expelled over 800,000 Palestinians from theirancestral homes.46 The Israeli State confiscated the land and property of Palestinians they
had killed or forcibly displaced.47

40

Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160.
41
Press Release, OHCHR, Onslaught of Violence Against Women and Children in Gaza Unacceptable: UN Experts,
U.N. NEWS (May 6, 2024), https://www.ohchr.org/en/press-releases/2024/05/onslaught-violence-against-womenand-children-gaza-unacceptable-un-experts. See also Over 2% of Gaza’s Child Population Killed or Injured in Six
Months of War, SAVE THE CHILDREN (Apr. 4, 2024), https://www.savethechildren.net/news/over-2-gaza-s-childpopulation-killed-or-injured-six-months-war.
42
Press Release, PALESTINIAN CENTRAL BUREAU OF STATISTICS (PCBS), Palestinian Central Bureau of Statistics(PCBS) Presents the Conditions of Palestinian Population on the Occasion of the International Population Day,
11/07/2022 (July 7, 2022), https://pcbs.gov.ps/portals/_pcbs/PressRelease/Press_En_InterPopDay2022E.pdf.
43
H.E. Dr. Awad, Highlights the Palestinian Children’s Situation on the Occasion of Palestinian Child Day,
05/04/2023,
PALESTINIAN
CENTRAL
BUREAUOFSTATISTICS(PCBS)(Apr.
5,2023),
https://www.pcbs.gov.ps/site/512/default.aspx?tabID=512&lang=en&ItemID=4484&mid=3171&wversion=Staging
44
Nathan Citino, Ana Martín Gil & Kelsey P. Norman, Generations of Palestinian Refugees Face Protracted
Displacement
andDispossession,
MIGRATION
POL’Y
INST.
(May
3,
2023),
https://www.migrationpolicy.org/article/palestinian-refugees-dispossession.
45
Statement, OHCHR, Right of Return of Palestinian Refugees Must Be Prioritised over Political Considerations: UN
Experts (June 21, 2023), https://www.ohchr.org/en/statements/2023/06/right-return-palestinian-refugees-must-beprioritised-over-political.
46
The commander of the massacre in Deir Yassin in 1948 recalled that the majority of Zionist soldiers at the preattack meeting were deployed “for liquidation of all the men in the village and any other force that opposed us, whether
it be old people, women, or children.” Matthew Hogan, The 1948 Massacre at Deir Yassin Revisited, 63 THE
HISTORIAN 309, 315 (2001). See generally ILAN PAPPE, THE ETHNIC CLEANSING OF PALESTINE (2006); BENNY
MORRIS, THE BIRTH OF THE PALESTINIAN REFUGEE PROBLEM REVISITED (2004); NUR MASALHA, PALESTINE NAKBA:DECOLONISING HISTORY, NARRATING THE SUBALTERN, RECLAIMING MEMORY (2012).
47
See generally NORWEGIAN REFUGEE COUNCIL, LEGAL MEMO: THE ABSENTEE PROPERTY LAW AND ITSAPPLICATION TO EAST JERUSALEM, pp. 1–9 (Feb. 2017), https://www.nrc.no/globalassets/pdf/legalopinions/absentee_law_memo.pdf.

12

15.

In the aftermath of the Six-Day War of 1967, Israel took control of the West Bank, Gaza
Strip, and East Jerusalem, over which it continues to retain control to this day. 48 About
300,000 Palestinians were displaced by and following the 1967 War.49

16.

Between 1993 and 1995, the Israeli government and the Palestine Liberation Organization(PLO) signed the Oslo Accords and subsequent agreements. 50 The Oslo Accords, approvedat the time as interim arrangements until a permanent peace agreement was reached,created the Palestinian Authority (PA) and divided the occupied West Bank into threeareas, which were distributed between Israeli and limited PA control. 51 In 1993, Israel
began establishing military checkpoints and enacting its policy of “closure” in the WestBank and Gaza, heavily restricting the movement of goods and people into, out of, andamong the occupied Palestinian territories of the West Bank, Gaza, and East Jerusalem.52
In 2002, Israel began construction of a separation wall that traced, and at many points
breached, the border line between Israel and the West Bank as defined by the 1949
armistice—a structure that the ICJ in the Wall Advisory Opinion found to be in violationof Israel’s obligations under international humanitarian and human rights law.53

48

HUM. RTS. WATCH, A THRESHOLD CROSSED: ISRAELI AUTHORITIES AND THE CRIMES OF APARTHEID AND
PERSECUTION, p. 24 (2021), https://www.hrw.org/sites/default/files/media_2021/04/israel_palestine0421_web_0.pdf[hereinafter HUM. RTS. WATCH, A THRESHOLD CROSSED].
49
Laurence Michelmore (Comm’r-General of UNRWA), Report of the Commissioner-General of UNRWA, U.N.
GAOR, 22nd Sess., Supp. No. 13, para. 1, U.N. Doc. A/6713, (July 1, 1966 – June 30, 1967). The number ofPalestinians displaced from the West Bank in 1967 are estimated to be between 200,000 and 250,000, of which Israel
only permitted about 17,000 to return. See NEVE GORDON, ISRAEL’S OCCUPATION 6 (2008).
50
See Declaration of Principles on Interim Self-Government Arrangements (Oslo Accords or Oslo I) (Sept. 13, 1993),
U.N. PEACEMAKER, https://peacemaker.un.org/israelopt-osloaccord93; Israeli-Palestinian Interim Agreement on theWest Bank and the Gaza Strip (Oslo II) (Sept. 28, 1995), U.N. PEACEMAKER, https://peacemaker.un.org/israeloptosloII95.
51
The Oslo II agreement of 1995 divided the West Bank into three distinct areas, A, B, and C. Oslo II granted thePalestinian Authority (PA) internal self-rule in Area A and shared control with Israel of Area B, while Israel retained
full control of Area C, which comprises 60% of the area of the occupied West Bank. Map 3: Defining the Palestinian
Bantustan. Element #1: West Bank Areas A, B and C, ISRAELI COMM. AGAINST HOUSE DEMOLITIONS,
https://icahd.org/map3/ (last visited May 1, 2024). See generally HUM. RTS. WATCH, A THRESHOLD CROSSED;
INTERNATIONAL HUMAN RIGHTS CLINIC AT HARVARD LAW SCHOOL & ADDAMEER PRISONER SUPPORT AND HUMAN
RIGHTS ASSOCIATION, APARTHEID IN THE WEST BANK: A LEGAL ANLAYSIS OF ISRAEL’S ACTIONS (Feb. 28, 2022),
https://hrp.law.harvard.edu/wp-content/uploads/2022/03/IHRC-Addameer-Submission-to-HRC-COI-Apartheid-inWB.pdf.
52
AMNESTY INT’L, ISRAEL’S APARTHEID AGAINST PALESTINIANS: CRUEL SYSTEM OF DOMINATION AND CRIMEAGAINST HUMANITY (2022), p. 96, https://www.amnesty.org/en/documents/mde15/5141/2022/en/ [hereinafter
AMNESTY INT’L, ISRAEL’S APARTHEID AGAINST PALESTINIANS]. See generally Israel’s Closure of the West Bank andGaza Strip, HUM. RTS. WATCH (July 1996), https://www.hrw.org/legacy/reports/1996/Israel1.htm.
53
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004
I.C.J. 136, para. 137 (July 9) [hereinafter Wall Advisory Opinion]. The separation wall remains in place and has been
expanded since this opinion was issued. Linah Alsaafin, Israel’s Separation Wall Endures, 15 Years After ICJ Ruling,
AL-JAZEERA (July 9, 2019), https://www.aljazeera.com/news/2019/7/9/israels-separation-wall-endures-15-yearsafter-icj-ruling.

13

17.

In 2005, Israel carried out “unilateral disengagement,”54 withdrawing its military forces
and settlers from Gaza and dismantling its settlements.55 Hamas’s victory in the 2006
Palestinian Legislative Council elections, and its subsequent ouster of Fatah 56 from the
Gaza Strip, consolidated Hamas’s control over Gaza’s internal government institutions in
2007.57 In response, Israel imposed a blockade on Gaza, which intensified movement andeconomic restrictions and limited the categories and numbers of people and goods allowed
in and out of Gaza through Israeli border crossings,58 a policy that has been termed “a slowmoving precursor to the crime of genocide.” 59 Notwithstanding Israel’s proclaimed
security rationales for these restrictions, Israeli officials have referred to them as part of “apolicy of separation” of Gaza from the West Bank.60 The World Bank described theblockade as transforming Gaza into a “walled hub of humanitarian donations.” 61 The
blockade of Gaza has undermined Palestinians’ “civil, political, economic, social andcultural rights” and their “basic human rights and economic prospects, as well as theavailability of essential services, exacerbating poverty and aid dependency.”62 Moreover,the blockade has had a disproportionately devastating impact on Gazan women and girls,
particularly regarding access to education, economic and employment opportunities, andhealthcare, including reproductive health services.63

Israel’s Disengagement from Gaza and North Samaria (2005), ISR. MINISTRY OF FOREIGN AFF.,
https://embassies.gov.il/MFA/AboutIsrael/Maps/Pages/Israels%20Disengagement%20Plan-%202005.aspx(lastvisited May 1, 2024).
55
Id. See also AMNESTY INT’L, ISRAEL’S APARTHEID AGAINST PALESTINIANS at p. 18.
56
Fatah (also spelled “Fateh”) is the largest faction within the Palestine Liberation Organization (PLO). See FatahPalestinian Political Organization, Britannica https://www.britannica.com/topic/Fatah (last visited May 1, 2024).
57
Nathan J. Brown, Palestinians: Fighting and Governing, WILSON CTR. (Aug. 27, 2015),
https://www.wilsoncenter.org/article/palestinians-fighting-and-governing.
58
The term “blockade” is used by the UN to describe prolonged movement and economic restrictions on Gaza imposedsince 2007. See, e.g., UN secretary-General, Report of the Secretary-General on the Human rights situation in the
Occupied Palestinian Territory, including Jerusalem, paras. 10–12, U.N. Doc. A/HRC/24/30 (Aug. 22, 2013); UN
Secretary-General, Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian
Territory, including East Jerusalem, paras. 30–34, U.N. Doc. A/69/347 (Aug. 25, 2014); G.A. Res. 69/93, pmbl., para.
12 (Dec. 16, 2014).
59
Scholars’ Consensus: Genocide in Gaza Marks Turning Point, Israel Must Be Held Accountable, EURO-MED
MONITOR (Nov. 3, 2023), https://euromedmonitor.org/en/article/5914. See also Haider Eid, Israel’s Policies in Gaza
are Genocidal, Mondoweiss (Aug. 3, 2018), https://mondoweiss.net/2018/08/israels-policies-genocidal/; Mohammed
Nijim, Genocide in Palestine: Gaza as a Case Study, 27 INT’L J. HUM. RTS. 165, 165-200 (2023).
60
GISHA,WHATIS
THE“SEPARATIONPOLICY”?
pp.
3–4
(June
2012),
https://www.gisha.org/UserFiles/File/publications/Bidul/bidul-infosheet-ENG.pdf.
61
World Bank, Economic Restrictions: Moving Beyond the “Movement and Access” Approach, in WEST BANK AND
GAZA UPDATE 4, 4 (Oct. 2008), https://unispal.un.org/pdfs/WBGUpdateOct08Eng.pdf.
62
UN Secretary-General, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied
Palestinian Territory, including East Jerusalem, paras. 5, 28, U.N. Doc. A/71/364 (Aug. 30, 2016). See also AMNESTY
INT’L, ISRAEL’S APARTHEID AGAINST PALESTINIANS, at p. 96.
63
See U.N. WOMEN, GENDER AND WARS IN GAZA UNTANGLED: WHAT PAST WARS HAVE TAUGHT US? (JUNE 2021),
https://palestine.unwomen.org/en/digital-library/publications/2021/06/gender-and-wars-in-gaza-untangled;
NORWEGIAN REFUGEE COUNCIL, GAZA: THE IMPACT OF CONFLICT ON WOMEN (Nov. 2015)
https://www.nrc.no/globalassets/pdf/reports/gaza---the-impact-of-conflict-on-women.pdf; GISHA, DISCRIMINATION
BY DEFAULT: A GENDER ANALYSIS OF ISRAEL’S CRITERIA FOR TRAVEL THROUGH EREZ CROSSING (Dec. 2020)
https://gisha.org/UserFiles/File/publications/Discrimination_by_Default_EN.pdf.
54

14

18.

Despite formally disengaging its military from Gaza in 2005, Israel continues to maintainits occupation of the Strip. Gaza is an occupied territory under international law, a statusdetermined on the basis that “Israel still exercises key elements of authority over the strip,
over its borders (airspace, sea, and land, at the exception with the border with Egypt).”64
Israel also maintains further control of Gaza through its administration of the Palestinian
population registry and other aspects of governance. 65 Gaza’s status as an occupied
territory under international law has been affirmed by the UN General Assembly,66 the UN
Security Council,67 UN mechanisms and experts,68 the International Committee of the Red
Cross (ICRC),69 the Conference of High Contracting Parties to the Fourth Geneva

Frequently Asked Questions on ICRC’s Work in Israel and the Occupied Territories, INT’L COMM. RED CROSS[hereinafter ICRC] (Mar. 27, 2024), https://www.icrc.org/en/document/frequently-asked-questions-icrcs-work-israeland-occupied-territories (Under the question, “What is the status of the Gaza Strip under international law?”). While
Egypt officially “controls” the Egypt-Gaza border, control ultimately belongs to Israel. Israel decides who can crossthe border, and Israeli “consent and cooperation” is required to keep the crossing open. GISHA, DISENGAGEDOCCUPIERS: THE LEGAL STATUS OF GAZA 11 (2007),https://www.gisha.org/UserFiles/File/Report%20for%20the%20website.pdf.
The
Independent
International
Commission of Inquiry on the Occupied Palestinian Territory, in concluding that Israel still occupied Gaza, noted
Israel’s “control exercised over, inter alia, its airspace and territorial waters, land crossings at the borders, supply ofcivilian infrastructure, including water and electricity, and key governmental functions such as the management of thePalestinian population registry.” Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, para. 16, U.N. Doc. A/HRC/50/21 (May 9, 2022).
65
Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, para. 16, U.N. Doc. A/HRC/50/21 (May 9, 2022). For further information and analysis of
the legal framework that Israel maintains in relation to the population registry in Gaza, see NORWEGIAN REFUGEE
COUNCIL, UNDOCUMENTED AND STATELESS: THE PALESTINIAN POPULATION REGISTRY AND ACCESS TO RESIDENCY
AND IDENTITY DOCUMENTS IN THE GAZA STRIP (Jan. 2012),
https://www.nrc.no/globalassets/pdf/reports/undocumented-and-stateless.pdf.
66
G.A. Res. 77/247 (Dec. 30, 2022); G.A. Res. 76/126 (Dec. 10, 2021); G.A. Res. ES-10/18 (Jan. 23, 2009).
67
S.C. Res. 1860 (Jan. 8, 2009) (“Stressing that the Gaza Strip constitutes an integral part of the territory occupied in1967 and will be a part of the Palestinian state”).
68
See, e.g., Concluding Observations of the Human Rights Committee on the fifth periodic report of Israel, para. 16,
CCPR/C/ISR/CO/5 (May 5, 2022), https://digitallibrary.un.org/record/3977037?ln=en; Report of the Independent
International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, para.
7, U.N. Doc. A/77/328 (Sept. 14, 2022),
https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/coiopt/2022-10-19/Report-COI-OPT14Sept2022-EN.pdf; Report of the U.N. Commission of Inquiry on the 2018 Protests in the Occupied Palestinian
Territory,
para.
1,
U.N.
Doc.
A/HRC/40/74
(Feb.
25,
2019),
https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/CoIOPT/A_HRC_40_74.pdf; Report ofthe detailed findings of the Independent International Commission of Inquiry on the Protests in the Occupied
Palestinian
Territory,
para
1.,
U.N.
Doc.
A/HRC/40/CRP.2
(Mar.
18,
2019),
https://www.ohchr.org/sites/default/files/HRBodies/HRC/RegularSessions/Session40/Documents/A_HRC_40_74_C
RP2.pdf. See also various reports of the Mandate of the Special Rapporteur on the Situation of Human Rights in thePalestinian Territories Occupied since 1967, https://www.ohchr.org/en/special-procedures/sr-palestine (last visited
May 1, 2024).
69
Frequently Asked Questions on ICRC’s Work in Israel and the Occupied Territories, ICRC (Dec. 20, 2023),
https://www.icrc.org/en/document/frequently-asked-questions-icrcs-work-israel-and-occupied-territories (Under thequestion, “What does ICRC do in Israel and the occupied territories?”).
64

15

Convention of December 2014, 70 the International Criminal Court (ICC), 71 the European
Union,72 the African Union,73 and numerous non-government organizations (NGOs) andinternational law experts.74
19.

Israel’s control of Palestinian life in Gaza extends to enforcing access restrictions to areas
even within Gaza’s borders. Since disengaging its ground troops and settlements from Gazain 2005, Israel has continued to impose “buffer zones” along Gaza’s land borders with
Israel,75 as well as to restrict the access of Palestinians in Gaza to “a fraction” of its
territorial waters.”76 The size of the buffer zones has varied since 2005, extending up to
1,500 meters from the land border with Israel and blocking off up to 17 percent of Gaza’s
total area and about 35 percent of its farmland.77 Similarly, Israel has restricted the accessof Palestinians in Gaza to “fishing zones” that have ranged from three to nine nautical miles
from the shore, in violation of the Interim Oslo Agreement of 1995, which entitled
Palestinians to access up to 20 nautical miles off the coast of Gaza.78 Israel has enforced
land and sea access restrictions through violent measures, including the use of live
ammunition, resulting in injuries and even death.79 Moreover, Palestinians in Gaza have

70

Paul Seger (Ambassador of Switzerland to the UN), Letter dated 29 December 2014 from the Permanent
Representative of Switzerland to the United Nations addressed to the Secretary-General, Annex, para. 8, U.N. Doc.
A/69/ 711 (Dec. 29, 2014), https://www.un.org/unispal/document/auto-insert-187192/.
71
Situation in the State of Palestine, Case No. ICC-01/18, Decision on the ‘Prosecution request pursuant to article
19(3) for a ruling on the court’s territorial jurisdiction in Palestine,’ Pre-Trial Chamber, para. 48 (Feb. 5, 2021).
72
European Union Intervention, Hum. Rts Council Interactive Dialogue with the Special Rapporteur on the Situationof Human Rights in the Palestinian Territories Occupied since 1967, EUROPEAN UNION (Mar. 19, 2018),
https://www.eeas.europa.eu/node/41718_en.
73
Report of the Commission on the situation in Palestine and the Middle East, Executive Council 34th ordinary
session, AFRICAN UNION (Feb. 7-8, 2019),
https://archives.au.int/bitstream/handle/123456789/6461/EX%20CL%201115%20%28XXXIV%29%20_E.pdf.
74
See, e.g., Israel and Palestine, DIAKONIA, https://www.diakonia.se/en/where-we-work/middle-east-northafrica/israel-and-palestine-opt/ (last visited May 1, 2024); Submission of the International Commission of Jurists to
the UN Human Rights Committee in view of the Committee’s examination of Israel’s fifth periodic report under
Article 40 of the International Covenant on Civil and Political Rights, Hum. Rts. Committee 134th Sess., Feb. 28Mar. 25, 2022, INT’L COMM. OF JURISTS (Jan. 31, 2022), https://icj2.wpenginepowered.com/wpcontent/uploads/2022/01/ISRAEL_HRCommittee_Submission.pdf; HUMAN RIGHTS WATCH, BORN WITHOUT CIVIL
RIGHTS: ISRAEL’S USE OF DRACONIAN MILITARY ORDERS TO REPRESS PALESTINIANS IN THE WEST BANK (Dec. 17,2019),
https://www.hrw.org/report/2019/12/17/born-without-civil-rights/israels-use-draconian-military-ordersrepress; AMNESTY INTERNATIONAL, ISRAEL’S OCCUPATION: 50 YEARS OF DISPOSSESSION (Jun. 7, 2017),
https://www.amnesty.org/en/latest/campaigns/2017/06/israel-occupation-50-years-of-dispossession/;
Alarming
increase of human rights violations against Palestinians in the occupied territory and against Palestinian citizens ofIsrael; FIDH (Nov. 9, 2023), https://www.fidh.org/en/region/north-africa-middle-east/israel-palestine/alarmingincrease-of-human-rights-violations-against-palestinians-in.
75
Buffer zones are border areas inside the Gaza Strip on which Israel has exercised military control and enforced
access restrictions. GISHA, CLOSING IN: LIFE AND DEATH IN GAZA’S ACCESS RESTRICTED AREAS I, p. 5 (Aug. 2018),
https://gisha.org/UserFiles/File/publications/ARA_EN.pdf.
76
Id. at p. 2.
77
Id. at p. 5; See generally SARA ROY, THE GAZA STRIP: THE POLITICAL ECONOMY OF DE-DEVELOPMENT (2016).
78
GISHA, CLOSING IN: LIFE AND DEATH IN GAZA’S ACCESS RESTRICTED AREAS I, P. 12 (Aug. 2018),
https://gisha.org/UserFiles/File/publications/ARA_EN.pdf.
79
Gaza Up Close, GISHA (June 28, 2023), https://features.gisha.org/gaza-up-close/.

16been reportedly shot at a distance up to two kilometers from the fence 80 and on their private
property located outside restricted zones.81 These access restrictions have caused
significant losses for Gazan farmers, landowners, and fishermen, and have undermined
Gaza’s agricultural production and food security.82 The impact of these restrictions has
been particularly harmful to women, whose percentage of the workforce in farming andfishing industries fell from 36 percent in 2007 to only 4 percent by 2018 following theimposition of the buffer zones.83
20.

Israel’s restrictions on imports into Gaza have caused severe shortages of necessities,
including housing, clean water, electricity, food, and medical care.84 Israel’s policy sinceat least 2008 of tightly controlling the import of food stuff into Gaza—“to put thePalestinians on a diet, but not to make them die of hunger,” as Dov Weisglass, an adviser
to Israel’s Prime Minister, said as early as 2006—has primed Gaza for the current famineconditions.85 The blockade has also rendered infrastructure-building materials largely
inaccessible and inhibited travel, including basic movement for crucial medical care, in andout of Gaza.86 In 2016, then -UN Secretary General Ban Ki-Moon called Israel’s blockade“collective punishment” of Palestinians in Gaza. 87 In 2014, the Human Rights Committee
observed the negative effect of the blockade “on Palestinians’ access to all basic and lifesaving services such as food, health, electricity, water and sanitation,” in violation of
Israel’s commitments under international human rights law.88

21.

The UN Security Council,89 the UN General Assembly,90 and many Palestinian, Israeli,
and international human right organizations have criticized Israel’s control over and

Displacement in the “Buffer Zone” Three Years after Operation Cast Lead, AL-MEZAN (Jan. 2, 2012),
https://reliefweb.int/report/occupied-palestinian-territory/displacement-%E2%80%9Cbuffer-zone%E2%80%9Dthree-years-after-operation-cast.
81
Rabea Eghbariah, An Unarmed Teen Was Shot During a Cease-Fire. Israel Was Never Held to Account., N.Y.
TIMES (Nov. 3, 2023), https://www.nytimes.com/2023/11/03/opinion/unarmed-teen-israel-gaza.html.
82
GISHA, CLOSING IN: LIFE AND DEATH IN GAZA’S ACCESS RESTRICTED AREAS I, at pp. 2–3, 8 (Aug. 2018),
https://gisha.org/UserFiles/File/publications/ARA_EN.pdf.
83
Id. at p. 2.
84
See Timeline: The Humanitarian Impact of the Gaza Blockade, OXFAM, https://www.oxfam.org/en/timelinehumanitarian-impact-gaza-blockade (last visited May 1, 2024); Gaza Up Close, GISHA (June 28, 2023),
https://features.gisha.org/gaza-up-close/.
85
Conal Urquhart, Gaza on Brink of Implosion as Aid Cut-Off Starts to Bite, THE GUARDIAN (Apr. 15, 2006),
https://www.theguardian.com/world/2006/apr/16/israel.
86
Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since
1967, Michael Lynk, para. 47, U.N. Doc. A/HRC/49/87 (Aug. 12, 2022); AMNESTY INT’L, ISRAEL’S APARTHEIDAGAINST PALESTINIANS, at p. 27.
87
Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since
1967, Michael Link, para. 47, U.N. Doc. A/HRC/49/87 (Aug. 12, 2022) (citing UN chief Ban Ki-moon calls for Israel
to end ‘collective punishment’ blockade of Gaza, HAARETZ (June 29, 2016), https://www.haaretz.com/middle-eastnews/2016-06-29/ty-article/ban-ki-moon-calls-for-israel-to-end-blockade-of-gaza/0000017f-e36f-d9aa-affffb7fd58f0000).
88
Concluding Observations of the Human Rights Committee on the fourth periodic report of Israel, para. 12,
CCPR/C/ISR/CO/4 (Nov. 21, 2014), https://www.ohchr.org/en/documents/concluding-observations/ccprcisrco4concluding-observations-fourth-periodic-report-israel.
89
S.C. Res. 1544 (May 19, 2004).
90
G.A. Res. 58/99 (Dec. 17, 2003).
80

17

violence against Palestinians in Gaza as violating Israel’s obligations under international
humanitarian law and international human rights law.91
22.

Between 2008 and October 6, 2023, the Israeli military killed an estimated 6,417
Palestinians, 5,360 of which were residents of Gaza.92 Israel conducted multiple military
campaigns in Gaza since commencing its blockade, often in response to rocket attacks byHamas, including five major assaults, summarized below:

23.

On December 27, 2008, Israel launched “Operation Cast Lead” in Gaza, which lasted for
22 days.93 Israel’s uninterrupted airstrikes, shelling, and ground operations killed 1,383
Palestinians, including 333 children, and injured over 5,300.94 During this campaign, Israel
bombarded an UNRWA compound sheltering over 600 Palestinians, al-Quds hospital, andal-Wafa Hospital, including with artillery shells containing white phosphorus.95 On
January 8, 2009, the UN Security Council passed a resolution calling for an “immediate”
ceasefire and “immediate withdrawal of Israeli forces from Gaza.”96 A UN fact-finding
mission found that Israel’s conduct in “Operation Cast Lead” violated international
humanitarian law and customary law principles and may have amounted to war crimes.97

See generally Press Release, OHCHR, Collective punishment in Gaza must end: Israel’s blockade enters its 7th year
– UN Special Rapporteur (June 14, 2013), https://www.ohchr.org/en/press-releases/2013/06/collective-punishmentgaza-must-end-israels-blockade-enters-its-7th-year-un; Press Release, OHCHR, Israel’s collective punishment ofPalestinians illegal and an affront to justice: UN expert (June 14, 2013), https://www.ohchr.org/en/pressreleases/2020/07/israels-collective-punishment-palestinians-illegal-and-affront-justice-un;
AMNESTY
INT’L,ISRAEL/OCCUPIED PALESTINIAN TERRITORIES: GAZA BLOCKADE – COLLECTIVE PUNISHMENT, AI Index
MDE15/021/2008 (July 4, 2008), https://www.amnesty.org/en/documents/mde15/021/2008/en/;‘Collective
Punishment’:IsraelBlocksFuel
Shipmentto
Gaza,
AL-JAZEERA
(July
17,
2018),
https://www.aljazeera.com/news/2018/7/17/collective-punishment-israel-blocks-fuel-shipment-to-gaza; Assoc. Int’l.
Dev. Agencies [hereinafter AIDA], The Gaza Blockade: 15 Years of Collective Punishment (Sept. 28, 2022),
https://reliefweb.int/report/occupied-palestinian-territory/gaza-blockade-15-years-collective-punishment-september2022; 15 years of blockade leaves Gaza facing perpetual health crisis, MEDICAL AID FOR PALESTINIANS (June 15,2022),
https://www.map.org.uk/news/archive/post/1363-15-years-of-blockade-leaves-gaza-facing-a-perpetualhealth-crisis; End Collective Punishment of Gaza’s Children, DEF. FOR CHILD. INT’L PALESTINE https://www.dcipalestine.org/campaign_end_collective_punishment_of_gaza_s_children_petition (last visited Apr. 20, 2024); Press
Release, B’Tselem, Collective Punishment of Gazans Continues: Family Visits Cancelled (Mar. 17, 2014),
https://www.btselem.org/press_releases/20140317_gaza_crossings_remain_closed.
92
Data on Casualties, OCHA, https://www.ochaopt.org/data/casualties (last visited May 5, 2024). See also Timelineof Recent Clashes Between Israel and Palestine, DAWN (Oct. 7, 2023), https://www.dawn.com/news/1779824; Gaza
2
Years
On:
ImpunityOver
Accountability,
ADALAH(Apr.
4,2025),
https://www.adalah.org/en/content/view/9082#_ftn1.
93
IDF Editorial Team, Operation Cast Lead 27.12.2008-18.01.2009, ISRAELI DEFENSE FORCES (Oct. 30, 2017),
https://www.idf.il/en/mini-sites/wars-and-operations/operation-cast-lead/.
94
Eight Years after the 2008-2009 (Cast Lead) Hostilities in Gaza: Lack of Accountability Persists, OCHA (Mar. 11,2017), https://www.ochaopt.org/content/eight-years-after-2008-2009-cast-lead-hostilities-gaza-lack-accountabilitypersists.
95
UN Fact-Finding Mission on the Gaza Conflict, Human Rights in Palestine and other Occupied Arab Territories,
pp. 133–49, U.N. Doc. A/HRC/12/48 (Sept. 25, 2009).
96
S.C. Res. 1860, para. 1 (Jan. 8, 2009)97
See, e.g., UN Fact-Finding Mission on the Gaza Conflict, Human Rights in Palestine and other Occupied ArabTerritories, paras. 595, 629, 652, 937. u, U.N. Doc. A/HRC/12/48 (Sept. 25, 2009).
91

18

24.

In November 2012, Israel carried out another military campaign in Gaza, “Operation Pillarof Defense,”98 in which it killed 174 Palestinians, including 33 children.99 During the eightday attack, Israel conducted over 1,500 airstrikes on Gaza, leading to destruction of civilian
infrastructure and residential buildings. 100 Multiple human rights organizations havedocumented violations by Israel of international humanitarian law and human rights law
principles throughout these hostilities.101

25.

In July 2014, Israel launched “Operation Protective Edge,”102 a major military assault on
Gaza that lasted 50 days and killed 2,251 Palestinians, including 551 children and 299
women, and injured 11,231.103 Of the Palestinians killed, 1,462 were civilians. 104 Israeli
shelling damaged 73 medical facilities and fully or partially destroyed 18,000 housing
units.105 A UN Independent Commission of Inquiry found that the Israeli military hadtargeted “civilians, at times children, who were not directly participating in the hostilities”
during this operation.106 The Commission concluded that Israel’s conduct of hostilities
violated international human rights law, as well as international humanitarian law,
including the principles of proportionality and distinction, and may have amounted to war
crimes.107

26.

In 2018, Palestinians in Gaza participated in weekly peaceful demonstrations within Gazan
territory, protesting the blockade and demanding the right of return for Palestinian refugees
forcibly displaced by Israel. 108 Israeli military snipers killed 189 Palestinians and injured
over 23,000 inside Gaza in the context of these demonstrations between March andDecember 2018.109

98

IDF Editorial Team, Operation Pillar of Defense, ISRAELI DEFENSE FORCES (Oct. 30, 2017),
https://www.idf.il/en/mini-sites/wars-and-operations/operation-pillar-of-defence/operation-pillar-of-defense/.
99
Report of the UN High Commissioner for Human Rights on the Implementation of Human Rights Council
Resolutions S-9/1 and S-12/1, para. 6, U.N. Doc. A/HRC/22/35/Add.1.
100
Id. at para. 7.
101
See, e.g., B’TSELEM, HUMAN RIGHTS VIOLATIONS DURING OPERATION PILLAR OF DEFENSE 14-21 NOVEMBER 2012
(May 2013), https://www.btselem.org/download/201305_pillar_of_defense_operation_eng.pdf; AL-HAQ, VOICESFROM THE GAZA STRIP: A YEAR AFTER OPERATION “PILLAR OF DEFENSE” (Nov. 21, 2013),
https://www.alhaq.org/monitoring-documentation/6700.html; HUMAN RIGHTS WATCH, ISRAEL: GAZA STRIKES
VIOLATED LAWS OF WAR (Feb. 12, 2013), https://www.hrw.org/news/2013/02/12/israel-gaza-airstrikes-violatedlaws-war.
102
IDF Editorial Team, Operation Protective Edge 8.7-26.8.2014, ISRAELI DEFENSE FORCES (Oct. 30, 2017),
https://www.idf.il/en/mini-sites/wars-and-operations/operation-protective-edge/operation-protective-edge/.
103
Key Figures on the 2014 Hostilities, OCHA (June 23, 2015), https://www.ochaopt.org/content/key-figures-2014hostilities.
104
Id.
105
Id. See also 2014 Gaza Conflict, UNRWA, https://www.unrwa.org/2014-gaza-conflict (last visited May. 1, 2024).
106
Report of the Independent Commission of Inquiry established pursuant to Human Rights Council resolution S21/1, para. 59, U.N. Doc. A/HRC/29/52 (June 24, 2015), https://digitallibrary.un.org/record/800872?ln=en.
107
Id. at paras. 58-60.
108
Report of the U.N. Commission of Inquiry on the 2018 Protests in the Occupied Palestinian Territory, para. 14,
U.N. Doc. A/HRC/40/74 (Feb. 25, 2019),
https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/CoIOPT/A_HRC_40_74.pdf.
109
Id. at paras. 38, 93; Trends Affecting Humanitarian Affairs in the Occupied Palestinian Territory, OCHA (Dec. 27,2018), https://www.ochaopt.org/content/2018-more-casualties-and-food-insecurity-less-funding-humanitarian-aid.

19

27.

Between May 10 and May 21, 2021, in the midst of large-scale protests by Palestinians
across the occupied territories and inside Israel against the forced evictions of Palestinian
Jerusalemites from their homes and the storming of Al-Aqsa mosque by Israeli police
forces,110 Hamas fired rockets into Israel that killed 12 civilians. 111 In response, Israel
carried out a major military campaign, “Operation Guardian of the Walls,”112 that killed
261 Palestinians, including 67 children and 41 women, and injured over 2,200
Palestinians.113 Many hospitals, houses, and civil infrastructure facilities were destroyed
by Israeli attacks.114 The Independent International Commission of Inquiry on the OPT and
Israel rejected Israel’s “use of pre-emption or deterrence as the legal basis justifying theseactions” and found that “specific attacks carried out” in Gaza “were disproportionate to themilitary necessity and lacked necessary precautions.”115

28.

Israel’s military assaults and blockade together have caused staggering economic precarity
in Gaza. The UN Conference on Trade and Development (UNCTAD) estimated that thepoverty rate in Gaza in 2017 was nearly four times what it would have been without Israel’s
military offensives and access restrictions.116 In 2016, on the tenth year of the blockade in
Gaza, the UN Secretary General asserted that the blockade “continued to undermine basic
human rights and economic prospects, as well as the availability of essential services,
exacerbating poverty and aid dependency.”117 Between 2007 and 2022, poverty levels in
Gaza rose from 39 percent to 65 percent.118

29.

Israeli violations of international law and the human rights of Palestinians, including
violation of the international law prohibition of apartheid,119 have taken place in the context

110

Overview | November 2021, OCHA (Nov. 3, 2021), https://www.ochaopt.org/content/overview-november2021#ftn1; Arwa Ibrahim, Scores of Palestinians Hurt as Israel Police Storm Al Aqsa: Live, AL-JAZEERA (May 8,2021), https://www.aljazeera.com/news/2021/5/7/jerusalem-dozens-of-palestinians-hurt-in-al-aqsa-clashes.
111
Palestinian Rockets in May Killed Civilians in Israel, Gaza: Indiscriminate Attacks by Gaza-Based Armed Groups
Are War Crimes, HUM. RTS. WATCH (Aug. 12, 2021), https://www.hrw.org/news/2021/08/12/palestinian-rocketsmay-killed-civilians-israel-gaza.
112
IDF Editorial Team, Operation Guardian of the Walls (June 14, 2021), https://www.idf.il/en/mini-sites/wars-andoperations/operation-guardian-of-the-walls/operation-guardian-of-the-walls-1/
113
Overview | November 2021, OCHA (Nov. 3, 2021), https://www.ochaopt.org/content/overview-november2021#ftn1.
114
Id.
115
Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, para. 76, U.N. Doc. A/HRC/50/21 (May 9, 2022).
116
UN Conference on Trade and Development [hereinafter UNCTAD] Secretariat, Developments in the Economy of
the Occupied Palestinian Territory, para. 50, U.N. Doc. TD/B/EX(74)/2 (Sept. 11, 2023).
117
UN Secretary-General, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied
Palestinian Territory, including East Jerusalem, para. 5, U.N. Doc. A/71/364 (Aug. 30, 2016).
118
Id. at Table 2.
119
See Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied
since 1967, S. Michael Lynk, paras. 51-56 (Conclusions), U.N. Doc. A/HRC/49/87 (advanced unedited version) (Mar.
21,2022),
https://www.ohchr.org/en/documents/country-reports/ahrc4987-report-special-rapporteur-situationhuman-rights-palestinian; Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian
Territories Occupied since 1967, Francesca P. Albanese, paras. 40, 70, 74, U.N. Doc. A/77/356 (Sept. 21, 2022),20

of a long history of violent discourse towards Palestinians by and within Israel. High-level
Israeli officials have often used dehumanizing and demoralizing language when referringto Palestinians and have regularly expressed a desire to indiscriminately punish them. For
example, in 2001, Prime Minister Benjamin Netanyahu claimed in an interview that “[theonly way to deal with the Palestinians is to] beat them up, not once but repeatedly, beatthem up so it hurts so badly, until it’s unbearable.” 120 In 2002, then Israeli Chief of Staff
Moshe Yaalon said, “[t]he Palestinian threat harbours cancer-like attributes that have to be
severed and fought to the bitter end.”121 In 2013, when arguing against a proposal to release
Palestinian prisoners during a cabinet meeting, former Prime Minister Naftali Bennett said,“[i]f you catch terrorists, you have simply to kill them . . . I have killed lots of Arabs in mylife – and there is no problem with that.”122 In 2014, Moshe Feiglin, then Deputy Speakerof the Knesset, published an article saying that “the only innocents in Gaza are the IDF
soldiers” and calling Palestinians “savages of the desert.” 123 In 2014, Ayelet Shaked, thenmember of the Israeli Knesset, posted on her Facebook page excerpts from an article byIsraeli writer, Uri Elitzur, which stated that “the entire Palestinian people is the enemy,”and that “they are all enemy combatants, and their blood shall be on all their heads.” 124Less than a year later, she was appointed as the justice minister.125 In 2016, Prime Minister
Netanyahu called Palestinians and citizens of Arab neighboring countries “wild beasts.”126
In 2019, Netanyahu stated that Israel is “not a state of all its citizens,” but that it was the“nation state only of the Jewish people.”127 In April 2023, he said in a speech that “wehttps://www.ohchr.org/en/documents/country-reports/a77356-situation-human-rights-palestinian-territoriesoccupied-1967; AL-MEZAN, THE GAZA BANTUSTAN: ISRAELI APARTHEID IN THE GAZA STRIP (2021),
https://mezan.org/uploads/upload_center/kLAkShfIAra2.pdf; HUM. RTS. WATCH, A THRESHOLD CROSSED; AMNESTY
INT’L, ISRAEL’S APARTHEID AGAINST PALESTINIANS.
120
Liel Leibovitz, Fibi Netanyahu, TABLET (July 15, 2010), https://www.tabletmag.com/sections/news/articles/fibinetanyahu.
121
Ewen MacAskill, We Must Destroy Palestinian Threat, Army Chief Says, THE GUARDIAN (Aug. 26, 2002),
https://www.theguardian.com/world/2002/aug/27/israel.
122
Ariel Ben Solomon, Bennett under Fire for Comments about Killing Arabs, THE JERUSALEM POST (July 30, 2013),
https://www.jpost.com/diplomacy-and-politics/bennett-under-fire-for-comments-about-killing-arabs-321467.
123
Moshe
Feiglin,
We
Are
the
Good
Guys,
JEWISHPRESS.COM
(July
31,
2014),
https://www.jewishpress.com/indepth/columns/moshe-feiglin/we-are-the-good-guys/2014/07/31/; Josh Ruebner, The
Missing Israeli Incitement against Palestinians, THE HILL (Sept. 30, 2015), https://thehill.com/blogs/punditsblog/international/255403-the-missing-israeli-incitement-against-palestinians/. See also Akbar Shahid Ahmed, ‘Our
Soldiers Are the Only Innocents In Gaza’: Here's What Israel’s Far-Right Is Saying, HUFFPOST (July 25, 2014),
https://www.huffpost.com/entry/israel-far-right-gaza-moshe-feiglin_n_5621667.
124
Ishaan Tharoor, Israel’s New Justice Minister Considers All Palestinians to be the Enemy, WASH. POST (May 7,2015), https://www.washingtonpost.com/news/worldviews/wp/2015/05/07/israels-new-justice-minister-considersall-palestinians-to-be-the-enemy/; Ben Norton, Netanyahu Appoints Ayelet Shaked—Who Called for Genocide ofPalestinians—asJustice
MinisterinNew
Government,
MONDOWEISS(May
6,2015),
https://mondoweiss.net/2015/05/netanyahu-palestinians-government/.
125
Ayelet Shaked, JEWISH VIRTUAL LIBR., https://www.jewishvirtuallibrary.org/ayelet-shaked (last visited May 1,2024).
126
Peter Beaumont, Netanyahu Plans Fence Around Israel to Protect it from ‘Wild Beasts’, THE GUARDIAN (Feb 10,2016),
https://www.theguardian.com/world/2016/feb/10/netanyahu-plans-fence-around-israel-to-protect-it-fromwild-beasts.
127
Benjamin Netanyahu Says Israel is ‘Not a State of All its Citizens’, THE GUARDIAN (Mar. 10, 2019),
https://www.theguardian.com/world/2019/mar/10/benjamin-netanyahu-says-israel-is-not-a-state-of-all-its-citizens.

21

[Jews] are imbued with the mission of life, and they [Palestinians] are bathed in the lust of
murder.”128
PART 3: LEGAL STANDARDS – THE GENOCIDE CONVENTION
30.

The term genocide was coined by Raphael Lemkin in 1944.129 It is derived from the Greek
prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing.130 Genocide
was first recognized as a crime under international law in 1946 by UN General Assembly
Resolution 96.131 In the aftermath of the horrors of the Holocaust, and conscious of theshortcomings of international law at the time, the UN General Assembly in 1948
unanimously adopted the Convention on the Prevention and Punishment of the Crime of
Genocide (Genocide Convention),132 which established a legal definition for the crime of
genocide under international law. 133 The Genocide Convention entered into force on
January 12, 1951.134 At present, 153 States have ratified or acceded to the Genocide
Convention, including Israel,135 Palestine,136 and the United States.137

31.

The Genocide Convention defines the crime of genocide as the intentional destruction, in
whole or in part, of any national, ethnical, racial, or religious group, as such.138 Article I
stipulates that the contracting parties “confirm that genocide, whether committed in timeof peace or in time of war, is a crime under international law which they undertake toprevent and to punish.”139

32.

The Genocide Convention specifies five categories of punishable crimes; these are: “(a)Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit
genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.”140 The following

128

Khaled Elgindy (@elgindy_), X, (Apr. 25, 2023, 4:31 PM), https://x.com/elgindy_/status/1650960729451687936.
Genocide,
UN
OFF.
ON
GENOCIDE
PREVENTION
&
RESP.
TO
PROTECT,https://www.un.org/en/genocideprevention/genocide.shtml (last visited May 1, 2024).
130
Id.
131
Id.; G.A. Res. 96 (Dec. 11, 1946).
132
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277[hereinafter Genocide Convention].
133
Genocide Convention, art. II. See generally Genocide: A Commentary on the Convention, 58 YALE L.J. 1142
(1949).
134
U.N. OFF. ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT, FACT SHEET: THE CONVENTION ON
THE
PREVENTIONAND
PUNISHMENT
OF
THE
CRIME
OF
GENOCIDE(1948),
https://www.un.org/en/genocideprevention/documents/Genocide%20Convention-FactSheet-ENG.pdf (last visited
May 1, 2024)
135
Israel signed the Genocide Convention on August 17, 1949, and ratified it on March 9, 1950, thereby becoming aparty when the Genocide Convention entered into force on January 12, 1951. Israel did not file any reservation to the
Genocide Convention. Genocide Convention, Declarations and Reservations, UN TREATY COLLECTION, p. 2
https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-1.en.pdf (last visited May 1, 2024).
136
The State of Palestine ratified the Genocide Convention on April 2, 2014. Id. at p. 2.
137
The United States signed the Genocide Convention on December 11, 1948, and ratified it on November 25, 1988.
Id. at p. 3. The United States filed a reservation to the Genocide Convention barring it from being submitted to thejurisdiction of the ICJ without its specific consent. Id. at p. 5.
138
Genocide Convention, art. II.
139
Genocide Convention, art. I.
140
Genocide Convention, art. III.
129

22

sections of the report address specifically the crime of genocide and direct and public
incitement to commit genocide.
33.

The prohibition on the crime of genocide in the Genocide Convention and in internationalcustomary law is jus cogens, or a peremptory norm, of international law, from which no
derogation is permitted.141 This preemptory character of the prohibition gives rise to bothobligations erga omnes142 and erga omnes partes,143 that is, obligations that are the“concern of all States”144 and of “all the States parties” to the Genocide Convention. 145
These obligations are discussed in further detail in Part 5 of this report.

1. The crime of genocide
34.

Article II of the Genocide Convention defines the crime of genocide as the commission of
any of the specified acts in the Article, with the intent “to destroy, in whole or in part, anational, ethnical, racial or religious group, as such.” 14635.

The acts enumerated in Article II of the Convention are:(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; and(e) Forcibly transferring children of the group to another group.147

141

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23 (May 28). The Court affirmed the jus cogens character of the prohibition on genocide in the
Democratic Republic of Congo v. Uganda judgment and in the Bosnia & Herzgovina v. Yugoslavia’s Preliminary
Objections Judgment. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), para. 64, 2006
I.C.J Rep. 168 (Dec. 19) [hereinafter Dem. Rep. Congo v. Uganda]; Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugoslavia), Preliminary Objections Judgment, 1996
I.C.J. 595, para. 31 (July 11) [hereinafter Bosn. & Herz. v. Yugoslavia Preliminary Objections Judgment].
142
Erga omnes obligations are obligations owed “towards the international community as a whole.” Barcelona
Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 I.C.J. 3, para. 32 (Feb. 5) [hereinafter Barcelona
Traction]. See also Dem. Rep. Congo v. Uganda at para. 64; Bosn. & Herz. v. Yugoslavia Preliminary Objections
Judgment at para. 31.
143
Erga omnes partes obligations are obligations owed “by any State party [to a convention] to all the other State
parties.” Application of Convention on Prevention and Punishment of Crime of Genocide (Gamb. v. Myan.),Provisional Measures, 2020 I.C.J. 3, para. 41 (Jan. 23) [hereinafter Gamb. v. Myan. Provisional Measures Order].
144
See Barcelona Traction at para. 33, affirmed by the Court in the Wall Advisory Opinion at para. 155.
145
Gamb. v. Myan. Provisional Measures Order at para. 41.
146
Genocide Convention, art. II.
147
Id., arts. II(a)–(e).

23

36.

The relevant acts for our analysis in this present case are: “killing members of the group,” 148“causing serious bodily or mental harm to members of the group,”149 and “deliberately
inflicting on the group conditions of life calculated to bring about its physical destructionin whole or in part.”150 The following section (1.a) discusses the legal standards governing
findings of genocidal acts and genocidal intent in more detail.151

37.

A “group” is determined by “the positive identification . . . with specific distinguishing
characteristics,”152 which may be national, ethnical, racial, or religious.”153 For the
purposes of our analysis, the specific group under discussion is Palestinians in Gaza. As
recognized by the ICJ in its provisional measures order: “The Palestinians appear toconstitute a distinct ‘national, ethnical, racial or religious group,’ and hence a protectedgroup within the meaning of Article II of the Genocide Convention. . . . Palestinians in the
Gaza Strip form a substantial part of the protected group.”154

1.a. Genocidal acts
1.a.i. Killing members of a group38.

Killing members of a group is one of the means by which genocide is committed. The
Genocide Convention does not require a minimum number of victims for the crime, nordoes ICJ jurisprudence. International criminal tribunals have further affirmed that “there is

148

Id., art. II(a).
Id., art. II(b).
150
Id., art. II(c).
151
These same elements comprise the crime of genocide in the Rome Statute, the Statute of the International Criminal
Tribunal for the former Yugoslavia (ICTY), and the Statute of the International Criminal Tribunal for Rwanda(ICTR).151 The jurisprudence of these Statutes’ respective courts provides guidance in interpreting the elements of thecrime of genocide under the Convention and their application to the facts of Israel’s actions in Gaza. Rome Statute of
the International Criminal Court, art. 6, July 17, 1998, 2187 U.N.T.S. 3; S.C. Res. 1877 [hereinafter Rome Statute];
Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 4 (July 7, 2009); S.C. Res. 955;
Statute of the International Criminal Tribunal for Rwanda, art. 2 (Nov. 8, 1994).
152
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb.
& Montenegro), Judgment, 2007 I.C.J. 43, para. 194 (Feb. 26) [hereinafter Bosn. & Herz. v. Serb. & Montenegro].
The Court distinguishes a “positive” identification of a group, i.e. defining a group by “what it is,” from a negative
definition, i.e. defining a group by “what it is not” or by exclusion from another group (paras. 193-194).
153
Id. at para. 193. See also Prosecutor v. Al-Bashir, ICC-02/05-01/09, Decision on the Prosecution’s Application for
a Warrant of Arrest against Omar Al-Bashir, para. 135 (I.C.C. Mar. 4, 2009); Prosecutor v. Tolimir, IT-05-88/2-T,
Trial Judgment, para. 735 (I.C.T.Y. Dec. 12, 2012) [hereinafter Tolimir Trial Judgment]. The ICTY held that anational, ethnical, racial, or religious group is identified “by using as a criterion the stigmatisation of the group, notably
by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.”
Prosecutor v. Blagojević and Jokić, IT-02-60-T, Trial Judgment, para. 667 (I.C.T.Y. Jan. 17, 2005) [hereinafter
Blagojević Trial Judgment], citing Prosecutor v. Krstić, IT-98-33-T, Trial Judgment, para. 557 (I.C.T.Y. Aug. 2, 2001)[hereinafter Krstić Trial Judgment]; Prosecutor v. Nikolić, IT-94-2-R61, Review of the Indictment Pursuant to Rule61, para. 27 (I.C.T.Y. Oct. 20, 1995); Prosecutor v. Jelisić, IT-95-10-T, Trial Judgment, para. 70 (I.C.T.Y. Dec. 14,
1999) [hereinafter Jelisić Trial Judgment]). In Rutaganda, the ICTR held that group membership under the Genocide
Convention was “a subjective rather than an objective concept,” where “the victim is perceived by the perpetrator as
belonging to a group slated for destruction.” Prosecutor v. Rutaganda, ICTR-96-3-T, Trial Judgment, para. 56(I.C.T.R. Dec. 6, 1999) [hereinafter Rutaganda Trial Judgment].
154
S. Afr. v. Isr. First Provisional Measures Order at paras. 44–45.
149

24

no numeric threshold of victims necessary to establish genocide,” as held by theInternational Criminal Tribunal for Rwanda (ICTR) in Muhimana.155 These tribunals offer
guidance on the scale of killing that may constitute a genocidal act. In Krstić, theInternational Criminal Tribunal for the former Yugoslavia (ICTY) held that a genocide
may be found where the qualified acts are committed against a “reasonably significant
number, relative to the total of the group as a whole, or else a significant section of thegroup, such as its leadership.”156 In a joint intervention in Gambia v. Myanmar, Canada,
Denmark, France, Germany, the Netherlands, and the United Kingdom affirmed that the“number of victims killed” is not a “focus” of the assessment, given that “circumstances
may be such that the perpetrator cannot, or decides not to, avail itself of the fastest or mostdirect means” of destruction.157
39.

The ICTY clarified in Galić that in order for an act to be considered genocidal, the purposeof the act must be to kill members of the group, and that the act be of sufficient intensity
as to suggest an attempt “to wipe out or even deplete the civilian population throughattrition,” rather than, for example, to instill fear in the population.158

1.a.ii. Causing serious bodily harm or mental harm to members of the group40.

This second category of acts covers two types of harm that may be inflicted upon
individuals: bodily harm, which, according to the International Law Commission (ILC),159“involves some type of physical injury”; and mental harm, “which involves some type of
impairment of mental faculties.”160 The ILC further specifies that “bodily harm or themental harm inflicted on members of a group must be of such a serious nature as to threaten
its destruction in whole or in part.”161 The ICJ affirmed the ILC’s interpretation of the155

Prosecutor v. Muhimana, ICTR-95-1B-T, Trial Judgment, para. 498 (I.C.T.R. Apr. 28, 2005) [hereinafter
Muhimana Trial Judgment]. In Akayesu, the ICTR specified that the act of “killing” requires that (1) the victim died,and (2) the death resulted by an unlawful act or omission of the perpetrator. Prosecutor v. Akayesu, ICTR-96-4-T,
Trial Judgment, para. 589 (I.C.T.R. Sept. 2, 1998) [hereinafter Akayesu Trial Judgment].
156
Krstić Trial Judgment, IT-98-33-T para. 587 (citation omitted). Leadership may include “political andadministrative leaders, religious leaders, academics and intellectuals, business leaders, and others.” An attack onleadership “must be viewed in the context of the fate or what happened to the rest of the group,” that is, when leadershipis exterminated while relatively large numbers of members of that group are forced to flee, “the cluster of violations
ought to be considered in its entirety in order to interpret the provisions of the [Genocide] Convention in a spirit
consistent with its purpose.” Final Report of the Commission of Experts established pursuant to Security Council
Resolution 780 (1992), Annex, at p. 25, para. 94, U.N. Doc. S/1994/674 (May 27, 1994).
157
Application of Convention on Prevention and Punishment of Crime of Genocide (Gamb. v. Myan.), Joint
Declaration of Intervention of Canada, Denmark, France, Germany, the Netherlands and the United Kingdom, 2023
I.C.J., para. 60 (Nov. 15) [hereinafter Gamb. v. Myan. Joint Intervention of Canada et al.].
158
Prosecutor v. Galić, IT-98-29-T, Trial Judgment, para. 593 (I.C.T.Y. Dec. 5, 2003) [hereinafter Galić Trial
Judgment].
159
The International Law Commission [hereinafter ILC] is a group of experts elected by the United Nations that gives
authoritative guidance for the development and codification of international law.
160
ILC, Draft Code of Crimes against the Peace and Security of Mankind, with commentaries, 2 Y.B. INT’L L.
COMM’N, art. 17, cmt. 14 (1996), https://legal.un.org/ilc/texts/instruments/english/commentaries/7_4_1996.pdf[hereinafter ILC Draft Code of Crimes against Peace and Security of Mankind].
161
Id.

25

“serious” element, noting that the harm must “contribute to the physical or biologicaldestruction of the group, in whole or in part.”162
41.

International criminal tribunals have offered further interpretations of “harm” for purposesof analyzing genocidal acts. The ICTY in Stakić defined harm to include “acts of torture,inhumane or degrading treatment, sexual violence including rape, interrogations combinedwith beatings, threats of death, and harm that damages health or causes disfigurement or
injury,”163 which “need not be permanent and irremediable.”164 Other specific acts
recognized by courts as causing harm include threats of death and knowledge of impending
death,165 acts causing intense fear or terror,166 and forcible displacement.167 The Appeals
Chamber in Tolimir held that the separation of families in the context of forced
displacement, the “fear and uncertainty” the victims felt for their fate, the “appalling
conditions of the journey,” and the “financial and emotional difficulties they faced in theirdrastically changed lives” resulting from forced transfer amounted to serious mental
harm.168 Regarding the seriousness of the harm, the determination must be made on a “caseby-case basis, with appropriate considerations given to the particular circumstances.”169 In
their joint intervention in Gambia v. Myanmar, Canada, Denmark, France, Germany, theNetherlands, and the United Kingdom have argued that the threshold for “seriousness”
varies with “the specific situation or position of the victims,” particularly when the victims
are children, “as children have a higher susceptibility to harm.” 170

1.a.iii. Deliberately inflicting on the group conditions of life calculated to bring about its physicaldestruction in whole or in part
42.

This category of genocidal acts is distinct from killing or causing serious bodily harm, inthat here the deliberate infliction of conditions of life calculated to bring about a group’s
physical destruction does not require that the destruction actually occur. 171 Instead, this162

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.),
Judgement 2015 I.C.J 3, para. 157 (Nov. 18) [hereinafter Croat. v. Serb.].
163
Prosecutor v. Stakić, IT-97-24-T, Trial Judgment, para. 516 (I.C.T.Y. July 31, 2003) [hereinafter Stakić Trial
Judgment], citing Akayesu Trial Judgment, ICTR-96-4-T paras. 502–04; Prosecutor v. Kayishema and Ruzindana,
ICTR-95-1-T, Trial Judgment (I.C.T.R. May 21, 1999), paras. 108–10 [hereinafter Kayishema Trial Judgment].
164
Stakić Trial Judgment at para. 516.
165
Prosecutor v. Tolimir, IT-05-88/2-A, Appeals Judgment, para. 206 (Apr. 8, 2015) [hereinafter Tolimir Appeals
Judgment].
166
R. v. Munyaneza, [2009] Q.C.C.S. 2201, para. 89 (Can. Que.).
167
Tolimir Appeals Judgment at para. 208–09.
168
Tolimir Appeals Judgement at para. 209 (“forced displacement may – depending on the circumstances of the case– inflict serious mental harm, by causing grave and long-term disadvantage to a person’s ability to lead a normal andconstructive life so as to contribute or tend to contribute to the destruction of the group as a whole or a part thereof”).
169
Tolimir Trial Judgment at para. 738; See also Tolimir Appeals Judgement at para. 202.
170
Gamb. v. Myan., Joint Declaration of Intervention of Canada et al. at paras. 39-40.
171
ILC Draft Code of Crimes against Peace and Security of Mankind, art. 17, cmt. 18 (“[t]he article clearly indicatesthat it is not necessary to achieve the final result of the destruction of a group in order for a crime of genocide to havebeen committed”).

26

type of genocidal act requires that the perpetrator employed methods that “ultimately, seek”
the physical destruction of the group.172
43.

The ICJ defined “conditions of life calculated to bring about its physical destruction inwhole or in part” as those “methods of physical destruction, other than killing, whereby theperpetrator ultimately seeks the death of the members of the group,” which may include“deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, [and]systematic expulsion from homes.”173 International criminal tribunals similarly have foundthat “subjecting a group of people to a subsistence diet, systematic expulsion fromhomes,”174 “rape, the starving of a group of people, reducing required medical services
below a minimum, and withholding sufficient living accommodation for a reasonable
period,”175 are methods that meet the criteria of Article II(c) of the Genocide Convention,“provided the above would lead to the destruction of the group in whole or in part.” 176

44.

While mass deportation is not explicitly listed under this subsection of the Genocide
Convention, the ILC “considered that [Article II(c)] covered deportation when carried out
with the intent to destroy the group in whole or in part.”177 The ICJ reiterated this in Bosnia
and Herzegovina v. Serbia and Montenegro, holding that “ethnic cleansing” may constitutegenocide, “provided such action is carried out with the necessary specific intent (dolus
specialis), that is to say with a view to the destruction of the group, as distinct from its
removal from the region.”178

1.b. Genocidal intent
45.

When any of the offenses listed under Article II of the Genocide Convention has beencommitted, the offender must have carried out the act “with intent to destroy, in whole orin part, a national, ethnical, racial or religious group, as such”179 in order for it to constitutethe crime of genocide.

46.

The ILC explains that the intent must be to “destroy a group and not merely one or moreindividuals who are coincidentally members of a particular group,” and that “the prohibited
act must be committed against an individual because of his membership in a particulargroup and as an incremental step in the overall objective of destroying the group.” 180 Thisrequirement to destroy a group “as such” makes genocide an exceptionally grave crime and

Akayesu Trial Judgment at para. 505. See also Krstić Trial Judgment at paras. 574, 580, 595. In Eichmann, theDistrict Court of Jerusalem held that imposing living conditions calculated to bring about the destruction of Jews was
only applicable under this framework to those still alive, rather than to those who were killed. A-G of Israel v.
Eichmann at para. 196.
173
Croat. v. Serb. at para. 161.
174
Akayesu Trial Judgment at para. 506.
175
Kayishema Trial Judgment at para. 116.
176
Id.
177
ILC Draft Code of Crimes against Peace and Security of Mankind, art. 17. cmt. 15.
178
Bosn. & Herz. v. Serbia & Montenegro at para. 190.
179
Genocide Convention, art. II.
180
ILC Draft Code of Crimes against Peace and Security of Mankind, art. 17, cmt. 6. See also Krstić Trial Judgment
at para. 561.
172

27

distinguishes it from other serious crimes,181 including the crimes of homicide182 andpersecution.183
47.

The crime of genocide does not require an intention to “achieve the complete annihilationof a group from every corner of the globe,” but rather, as the ILC explains, it requires “theintention to destroy at least a substantial part of a particular group.”184 Given that “theobject and purpose of the Genocide Convention as a whole is to prevent the intentional
destruction of groups,” the ICJ in Bosnia and Herzegovina v. Serbia and Montenegro heldthat “the part targeted must be significant enough to have an impact on the group as awhole.”185

48.

The ICJ also held that genocide can be committed “where the intent is to destroy the groupwithin a geographically limited area.” 186 In Krstić, the ICTY found that in the context ofthe forcible transfer of the Bosnian Muslim population, the systematic murder of BosnianMuslim men of a military age in Srebrenica demonstrated genocidal intent to destroy, inpart, the Bosnian Muslim group. 187 The ICTY Appeals Chamber in Krstić additionally
noted, “[t]he intent to destroy formed by a perpetrator of genocide will always be limitedby the opportunity presented to him. While this factor alone will not indicate whether thetargeted group is substantial, it can – in combination with other factors – inform theanalysis.”188

1.b.i. Establishing genocidal intent
49.

In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ affirmed that a finding of
the crime of genocide requires that acts outlined in Article II of the Genocide Convention
be committed with a “specific” or “special” intent (dolus specialis) to destroy a group inwhole or in part.189 This specific intent “has to be convincingly shown by reference toparticular circumstances, unless a general plan to that end can be convincingly stated toexist.”190 Additionally, “for a pattern of conduct to be accepted as evidence of its existence,
it would have to be such that it could only point to the existence of such intent.” 191 In
Croatia v. Serbia, the ICJ concluded that “to infer the existence of dolus specialis from a

Krstić Trial Judgment at para. 553.
G.A. Res 96(I) (Dec. 11, 1946).
183
Krstić Trial Judgment at para. 553.
184
ILC Draft Code of Crimes against Peace and Security of Mankind, art. 17, cmt. 8. See also Krstić Trial Judgment
at para. 634; Jelisić Trial Judgment at para. 82.
185
Bosn. & Herz. v. Serb. & Montenegro at para. 198.
186
Id. at para. 199.
187
Krstić Trial Judgment at para. 595.
188
Prosecutor v. Radislav Krstić, IT-98-33-A, Appeals Judgement, (I.C.T.Y. Apr. 19, 2004), para. 13 [hereinafter
Krstić Appeals Judgment] (“Nazi Germany may have intended only to eliminate Jews within Europe alone; thatambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale.
Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population
beyond the country’s borders.”).
189
Bosn. & Herz. v. Serb. & Montenegro at para. 187.
190
Id. at para. 373.
191
Id.
181
182

28

pattern of conduct, it is necessary and sufficient that this is the only inference that could
reasonably be drawn from the acts in question.” 192
50.

The draft ILC commentary on the international crime of genocide clarifies this point on
special intent: General intent to commit one of the enumerated acts, coupled with a “generalawareness of the probable consequences of such an act with respect to the immediate victim
or victims, is not sufficient for the crime of genocide.”193 Rather, the definition of the crimeof genocide “requires a particular state of mind or a specific intent with respect to theoverall consequences of the prohibited act.” 194 The ICTR held in Akayesu that the
culpability of the offender depends on whether he “knew or should have known that theact committed would destroy, in whole or in part, a group.” 195 This mental state isdetermined through analysis of a combination of factors that describe the intention todestroy a national, ethnical, racial, or religious group, as such, in whole or in part.

51.

In negotiating the substance of the Genocide Convention, States recognized that obtaining
official or explicitly genocidal plans by a perpetrator may be unrealistic, with the United
Kingdom stating that it would be “practically impossible” to prove that an act was taken toencourage the perpetration of genocide. 196 The ICTR Appeals Chamber in Gacumbitsi
affirmed that the “[t]ribunal’s jurisprudence conclusively establishes that genocidal intent
can be proven through inference from the facts and circumstances of a case,” noting that“[b]y its nature, intent is not usually susceptible to direct proof,” because “[o]nly theaccused himself has firsthand knowledge of his own mental state, and he is unlikely totestify to his own genocidal intent.”197 In the absence of a confession, the ICTR in Akayesu
found that “intent can be inferred from a certain number of presumptions of fact.” 198
Similarly, the court in Kayishema and Ruzindana determined that “intent can be inferred
either from words or deeds and may be demonstrated by a pattern of purposeful action.”199

52.

The following sections discuss the jurisprudence on genocidal intent expressed throughstatements and demonstrated through acts.

1.b.ii. Establishing genocidal intent through words and statements
53.

In the absence of guidance from the ICJ or commentary from the ILC, the jurisprudence ofinternational criminal tribunals suggests the appropriate means for inferring intent fromcertain rhetoric. Some tribunals have noted that directly calling for the killing or destructionof individuals or a group can constitute evidence of intent. The ICTR found that

192

Croat. v. Serb. at para. 148.
ILC Draft Code of Crimes against Peace and Security of Mankind, art. 17, cmt. 5.
194
Id.
195
Akayesu Trial Judgment at para. 520.
196
Continuation of the consideration of the draft convention on genocide [E/794]: Report of the Economic and Social
Council [A/633], U.N. GAOR, 6th Comm., 3rd Sess., Part I, 86th Mtg at p. 238 U.N. Doc. A/C.6/SR.86 (Oct. 28,
1948), https://digitallibrary.un.org/record/604638?ln=en&v=pdf.
197
Sylvestre Gacumbitsi v. The Prosecutor, ICTR-2001-64-A, Appeals Judgment (I.C.T.R. July 7, 2006), para. 40.
See also Prosecutor v. Popović et al., IT-05-88-T, Trial Judgement (I.C.T.Y. June 10, 2010), para. 823.
198
Akayesu Trial Judgement at para. 523.
199
Kayishema Trial Judgment at para. 93.
193

29

“Kanyabashi’s spoken words encouraging the population to search for the ‘enemy’ and‘clear bushes’, being references to killing Tutsis, evidences Kanyabashi had the requisite
intent to destroy, in whole or in part, the Tutsi ethnic group.” 200 The Appeals Chamber inJelisić held that evidence that the defendant “referred to a ‘plan’ for eradicating [prominent
Muslims]” and expressed a desire to “cleanse . . . the extremist Muslims and balijas likeone cleans the head of lice” provided a basis for a finding “beyond a reasonable doubt” ofintent to destroy the Muslim group in the town of Brčko.201
54.

The use of discriminatory and derogatory language can also contribute to a finding of
genocidal intent. The ICTR in Kayishema and Ruzindana considered evidence such as “theuse of derogatory language toward members of the targeted group” to infer intent.202 The
Appeals Chamber in Jelisić similarly held that intent to destroy could be inferred from“scornful and discriminatory” remarks made about the targeted group, such as calling them“dirty” and “slaves for cleaning the toilets.”203

1.b.iii. Establishing genocidal intent through patterns of conduct
55.

The ICJ has required that genocidal intent be the only reasonable inference drawn from apattern of conduct.204 The ICJ in Croatia v. Serbia considered among the most important
facts for establishing this pattern “the scale and allegedly systematic nature of the attacks,
the fact that those attacks are said to have caused casualties and damage far in excess ofwhat was justified by military necessity, the specific targeting of Croats and the nature,extent, and degree of the injuries caused to the Croat population.”205 In their joint
intervention in Gambia v. Myanmar, Canada, Denmark, France, Germany, theNetherlands, and the United Kingdom interpreted this test in light of the “scope” and“severity” of destruction, noting that this approach does not mean that there can be no otheralternative explanations for the acts, but that the level of destruction makes genocidal intent
the dominant explanation.206

56.

International criminal tribunals have found that an analysis of the totality of various acts
can illustrate special genocidal intent. The ICTR in Kayishema and Ruzindana held thatspecial genocidal intent can be inferred from a range of evidence “such as the physicaltargeting of the group or their property; . . . the weapons employed and the extent of bodily

200

Prosecutor v. Pauline Nyiramasuhuko et. al., ICTR-98-42-T, Trial Judgment (I.C.T.R. June 24, 2011), para. 6012.
Prosecutor v. Golan Jelisić, IT-95-10-A, Appeals Judgment (I.C.T.Y. July 5, 2001), paras. 67-68 [hereinafter Jelisić
Appeals Judgment].
202
Kayishema Trial Judgement at para. 93.
203
Jelisić Appeals Judgment at paras. 60, 62, 68.
204
Croat. v. Serb. at para. 148.
205
Id. at para. 413.
206
Gamb. v. Myan., Joint Declaration of Intervention of Canada et al. at paras. 52–53.
201

30

injury; the methodical way of planning, the systematic manner of killing. Furthermore, thenumber of victims from the group is also important.”207
57.

The ICTY in Karadžić and Mladić additionally considered amongst these factors thepolitical doctrine which “gave rise to the acts.” 208 The court noted:
The project of an ethnically homogeneous State formulated against a
backdrop of mixed populations necessarily envisages the exclusion of anygroup not identified with the Serbian one. The concrete expressions of theseplans by the SDS [Serb Democratic Party] before the conflict would confirm
the existence of an intent to exclude those groups by violence . . . Theseelements, taken together, would confirm the project . . . contemplates thedestruction of the non-Serbian groups.209

58.

In the context of armed conflict, courts may struggle to determine whether the attacking
side has genocidal intent or commits mass killings with the intention of winning the war.
In Krstić, the defense argued that the purpose of the killings of the Bosniak men in
Srebenica was to remove a military threat. 210 However, both the ICTY Trial Chamber andAppeals Chamber found that the killings were genocidal, noting that the eradication of“two or three generations of men”211 would have a lasting catastrophic impact on thegroup.212 Additionally,[t]he Bosnian Serb forces knew by the time they decided to kill all of
the military aged men, that the combination of those killings with theforcible transfer of the women, children and elderly would inevitably
result in the physical disappearance of the Bosnian Muslim population
at Srebrenica. . . . The Bosnian Serb forces effectively destroyed thecommunity of the Bosnian Muslims in Srebrenica and eliminated all
likelihood that it could ever re-establish itself on that territory. 213

59.

The ICJ accepted as legally significant with regard to the intent requirement the ICTY’s
conclusion that the Bosnian Serb Army’s military objectives at some point changed fromshrinking the Srebrenica enclave to overrunning it entirely.214 In such circumstances, evena military objective framed in terms of territorial control (as distinguished from mass

207

Kayishema Trial Judgment at para. 93. See also Akayesu Trial Judgement at para. 477 (considering factors including“the general context of the perpetration of other culpable acts systematically directed against that same group, whether
these acts were committed by the same offender or by others, . . . the scale of atrocities committed, their general nature,[and] in a region or a country . . . the fact of deliberately and systematically targeting victims on account of theirmembership of a particular group, while excluding the members of other groups”).
208
Prosecutor v. Karadžić and Mladić, IT-95-5-R61, Review of the Indictments Pursuant to Rule 61 of the Rules ofProcedure and Evidence, para. 94 (I.C.T.Y. July 11, 1996) [hereinafter Karadžić Indictments Review].
209
Id.
210
Krstić Trial Judgement at para 593.
211
Id. at para. 595
212
Id.; Krstić Appeals Judgement at para 37.
213
Krstić Trial Judgement at para. 595.
214
Bosn. & Herz. v. Serb. & Montenegro at paras. 294-295.

31

killings on that territory to weaken the enemy’s ranks or its resolve) can be evidence of
genocidal intent.215
60.

The systematic destruction of cultural sites may assist in proving intent, even if it does notamount to an independent violation under this subsection. In light of evidence of thewidespread destruction of religious monuments and libraries in Bosnia,216 the ICTY
observed in Krstić that “where there is physical or biological destruction there are often
simultaneous attacks on the cultural and religious property and symbols of the targetedgroup as well, attacks which may legitimately be considered as evidence of an intent tophysically destroy the group.”217 The ICJ endorsed this observation in Bosnia andHerzegovina v. Serbia and Montenegro.218

61.

Finally, conduct after the commission of genocidal acts may also be used to infer genocidal
intent. In Krstić, the Trial Chamber held that the creation of mass graves, bodily mutilation,and the exhumation and relocation of mass graves was indicative of genocidal intent. 219

2. Incitement to genocide
62.

Article III(c) of the Genocide Convention renders punishable the “direct and public
incitement of genocide.”220 Like all the other acts in Article III, a State can be found inbreach of Article III if it commits the act of incitement to genocide.221 Additionally, States
have the duty to punish non-State actors who incite genocide. Article IV of the Genocide
Convention obliges States to punish individuals who commit “any of the other acts
enumerated in Article III . . . whether they are constitutionally responsible rulers, public
officials or private individuals.”222 The requirement to prevent non-State actors fromcommitting incitement also inheres in the more general Article I obligation to prevent andpunish genocide.223

63.

The ICJ confirmed the duty to prevent incitement to genocide in its provisional measuresorder in South Africa v. Israel, directing Israel to “take all measures within its power toprevent and punish the direct and public incitement to commit genocide in relation tomembers of the Palestinian group in the Gaza Strip.”224

215

Id.
Id. at paras. 342–344.
217
Krstić Trial Judgment at para. 580.
218
Bosn. & Herz. v. Serb. & Montenegro at para. 344.
219
Krstić Trial Judgment at para. 596.
220
Genocide Convention, art. III(c).
221
Bosn. & Herz. v. Serb. & Montenegro at paras. 382-283.
222
Genocide Convention, art. IV.
223
ILC, Draft Articles on the Prevention and Punishment of Crimes Against Humanity, with commentaries, art. 4,
cmt. 9, 2 Y.B. INT’L L. COMM. (2019) [hereinafter ILC Draft Articles on Crimes Against Humanity], citing Hum. Rts.
Council, Res. 28/34, para. 2 (Apr. 7, 2015).
224
S. Afr. v. Isr., First Provisional Measures Order at paras. 379, 86(3).
216

32

2.b. Direct and public incitement by State actors
64.

Article III of the Genocide Convention renders punishable the crime of direct and public
incitement of genocide. This provision aims to prevent genocide at its earliest stages bypreempting the spread of genocidal ideas. 225 One way in which a State incurs responsibility
for violating Article III is by engaging itself or through its actors in public and direct
incitement to genocide.

65.

Incitement to genocide requires that the perpetrator possess the intent to provoke others tocommit genocide and that the speech qualifies as both “public” and “direct.”66.

The intent requirement of incitement to genocide is an “intent to directly prompt or provoke
another to commit genocide.”226 Specifically, the inciter must intend to create a “state ofmind necessary to commit such a crime in the minds of the person(s) he is so engaging.”227
Indicators of intent include the actual language employed by the speaker 228 and thecommission (by other actors) of acts of genocide subsequent to the speech.229

67.

An incitement is “public” if it involves “a call for criminal action to a number of individuals
in a public place or to members of the general public at large by such means as the mass
media, for example, radio or television.” 230 The “direct” element of incitement requires“more than mere vague or indirect suggestion.” 231 An incitement is “direct” when it“specifically provoke[s] another to engage in a criminal act.” 232 General statements ofhatred do not suffice—the perpetrator must call for others to take action.233

68.

Nevertheless, it is not necessary for the perpetrator to explicitly call for the exterminationof a group to be liable for incitement to genocide. 234 Directness must be evaluated within
its cultural and linguistic context; what appears direct in one cultural setting may appear
indirect in another.235 For this reason, an incitement can be direct even if it was implicit,
ambiguous, or open to multiple interpretations. 236 The focus is whether, taken in context,

See Wibke Kristin Timmerman, Incitement in International Criminal Law, 88 INT’L REV. RED CROSS 823, 836(2006).
226
Akayesu Trial Judgment at para. 560.
227
Id.
228
Prosecutor v. Ferdinand Nahimana et. al., Case No. ICTR-99-52-T, Trial Judgment (I.C.T.R. Dec. 3, 2003), para.
1007 [hereinafter Nahimana Trial Judgment]; Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A,
Appeals Chamber Judgment (I.C.T.R. Nov. 28, 2007), para. 706 [hereinafter Nahimana Appeals Judgment].
229
Nahimana Appeals Judgment at para. 709 (“in some circumstances, the fact that a speech leads to acts of genocide
could be an indication that in that particular context the speech was understood to be an incitement to commit genocide
and that this was indeed the intent of the author of the speech. The Appeals Chamber, notes, however, that this cannot
be the only evidence adduced to conclude that the purpose of the speech (and of its author) was to incite thecommission of genocide”).
230
Akayesu Trial Judgment at para. 556.
231
Id. at para. 557.
232
Id. See also Nahimana Appeals Judgment at para. 692 (holding that the speech must be “a direct appeal to commit
an act,” and that general statements of hatred do not suffice).
233
Nahimana Appeals Judgment at para. 696.
234
Id. at para. 702-03.
235
Akayesu Trial Judgement at para. 557.
236
Id.; Nahimana Appeals Judgment at para. 701.
225

33

“the persons for whom the message was intended immediately grasped the implication
thereof.”237 For example, the use of metaphors can constitute direct incitement to genocide.
In Nyiramasuhuko, the ICTR held that the defendant’s exhortation to the audience to“continue their work” and “sweep the dirt outside” constituted incitement to genocide
because “the audience understood the words of the accused . . . to mean they needed to kill
Tutsis.”238
69.

It is not necessary under the Genocide Convention for the speech to actually induce theaudience to conduct genocide. Rather, Article III criminalizes the speech act, irrespectiveof whether it achieves the desired result. International criminal tribunals have confirmedthat it is the speech act per se that is criminalized. 239 The International Military Tribunal in
Nuremberg convicted the publisher of a weekly antisemitic newspaper for crimes against
humanity on the basis of articles that supported and called for the annihilation of Jews,
finding that these articles in themselves evidenced “incitement to murder andextermination.”240 Similarly, the ICTR Appeals Chamber in Nahimana confirmed that “itis not necessary to show that direct and public incitement to commit genocide was followedby actual consequences.”241 Thus, even if the genocide would have occurred without the
speech, the speaker could still be guilty of incitement. 242 Such characterization ofincitement as an “inchoate”243 crime arises from the fact that “genocide clearly falls within
the category of crimes so serious that [incitement] must be punished as such, even wheresuch incitement failed to produce the result.”244

70.

The travaux préparatoires (drafting records) of the Genocide Convention, constituting a
subsidiary source of treaty interpretation,245 further support that incitement is punishable
regardless of whether genocide is carried out. Rejecting an unsuccessful U.S. proposal toremove Article III(c) from the Convention, France and Haiti identified that incitement
should be punishable even if unsuccessful246 and “even if . . . the crime was not actuallycommitted.”247 Uruguay noted that a clause specifying that unsuccessful incitement was
punishable would have been “superfluous,”248 indicating that the wording of Article III(c)237

Akayesu Trial Judgment at para. 558.
Prosecutor v. Nyiramasuhuko, Case No. ICTR-98-42-A, Appeals Judgment (I.C.T.R. Dec. 14, 2015), paras. 2335–
2336.
239
Nahimana Appeals Judgment, ICTR-99-52-A, para. 766. See also Nahimana Trial Judgment at para. 1007
(surveying jurisprudence on incitement in other human rights contexts).
240
International Military Tribunal (Nuremberg), Judgment, 502 (Oct. 1, 1946).
241
Nahimana Appeals Judgment at para. 766.
242
Id.
243
Id. at para. 678.
244
Akayesu Trial Judgment at para. 562.
245
See Vienna Convention on the Law of Treaties Art. 31, 22 May 1969, 1155 U.N.T.S.
246
Continuation of the consideration of the draft convention on genocide [E/794]: Report of the Economic and Social
Council [A/633], U.N. GAOR, 6th Comm., 3rd Sess., Part I, 84th Mtg, p. 216, U.N. Doc. A/C.6/SR.84 (Oct. 26, 1948),
https://digitallibrary.un.org/record/604636?v=pdf [hereinafter Genocide Convention Travaux, 84th Meeting].
247
Id. at p. 217.
248
Continuation of the consideration of the draft convention on genocide [E/794]: Report of the Economic and Social
Council [A/633], U.N. GAOR, 6th Comm., 3rd Sess., Part I, 85th Mtg, p. 222, U.N. Doc. A/C.6/SR.85 (Oct. 27, 1948),
https://digitallibrary.un.org/record/604637?ln=en&v=pdf. [hereinafter Genocide Convention Travaux, 85th Meeting].
23834

is sufficiently clear. The travaux also emphasize that the object and purpose of thisprovision is to curtail the wider societal dissemination of genocidal ideas and propaganda.
Poland emphasized, “Incitement to genocide was one of those typical cases in which thelaw should intervene at a very early stage.” 249 Poland highlighted that the object of theConvention was not just to punish genocide, but to prevent it. 250 These statements by thenegotiating States reinforce the fact that a State is liable for incitement to genocide even if
it does not successfully induce others to commit genocide.
2.c. Duty to prevent and punish direct and public incitement
71.

Article IV of the Genocide Convention obliges States to punish individuals who commit“any of the other acts enumerated in Article III . . . whether they are constitutionallyresponsible rulers, public officials or private individuals.” 251 The requirement to prevent
incitement also inheres in the Article I obligation to prevent and punish genocide. 252

72.

During negotiations surrounding incitement, several States parties noted the aim ofpreventing the spread of genocidal ideas. Venezuela emphasized that States needed to“punish incitement to commit genocide, in view of the fact that that crime was usually the
result of hatred instilled in the masses by inciters,” and in light of the Convention’s purposeof preventing genocide.253 Yugoslavia noted that criminalizing and preventing incitement
was the “first step” in preventing genocide, as genocide originates from “the preparationand mobilization of the masses, by means of theories disseminated through propaganda, by
the circles who had financed that propaganda.”254 Poland envisioned that the prohibitionof incitement should lead to the regulation of the press, because “freedom must not be sogreat as to permit the Press to engage in incitement to genocide.” 255 The travaux
préparatoires, therefore, demonstrate that the States parties intended the prohibition ofincitement to also regulate private, non-State actors.

73.

It follows that States must enact regulations that prevent non-State actors from committing
direct and public incitement of genocide. Moreover, given that the aim of Article III of the
Genocide Convention (as demonstrated by the travaux) is to effectively curb the spread of
genocidal propaganda, the provision also demands effective enforcement of thoseregulations. The failure of a State to enact or enforce measures to stop the spread of
genocidal ideas constitutes a violation of the prohibition on incitement to genocide.

249

Genocide Convention Travaux, 84th Meeting at p. 215.
Genocide Convention Travaux, 84th Meeting at p. 215. See also Genocide Convention Travaux, 85th Meeting at
p. 223 (Egypt), p. 227 (Soviet Union).
251
Genocide Convention, art. IV.
252
ILC Draft Articles on Crimes Against Humanity, art. 4, cmt. 9, citing Hum. Rts. Council, Res. 28/34, para. 2 (Apr.
7, 2015).
253
Genocide Convention Travaux, 84th Meeting at p. 208.
254
Id. at p. 216.
255
Id. at p. 215.
250

35

PART 4: FACTS AND ANALYSIS
3. Evidence that Israel is committing genocide in Gaza under Article II of the Genocide
Convention
74.

Using the framework of the Genocide Convention and its corresponding jurisprudence, thissection analyzes Israel’s actions following October 7, 2023, to determine whether they
constitute the crime of genocide. The facts below show that Israel has killed Palestinian
civilians in Gaza indiscriminately and en masse, caused serious bodily and mental harm toPalestinians, and inflicted on Palestinians in Gaza conditions of life calculated to bringabout their physical destruction in whole or in part. These conditions include deprivationof food, water, and medical services; forcible displacement of the majority of Palestinians
in Gaza; and destruction of civilian infrastructure, the education system, the healthcare
system, and cultural and religious heritage sites. Concomitantly, in both its actions and in
the statements of its leaders, the Israeli government has demonstrated a clear intent todestroy, in whole or in part, the Palestinians in Gaza. High Israeli Government officials
with decision-making power have expressly signaled their intention to cause massive
destruction and have employed dehumanizing and derogatory rhetoric toward Palestinians
in Gaza. Meanwhile, genocidal intent can likewise be inferred from the conduct of theIsraeli military in Gaza, as summarized above and elaborated on below.

3.a. Israel’s genocidal acts in Gaza
3.a.i. Israel has killed Palestinians in Gaza
75.

Between October 7, 2023, and May 1, 2024, Israeli military operations Gaza have killed atleast 34,568 Palestinians in Gaza.256 Approximately 14,500—over 40 percent—of thePalestinians killed in Gaza have been children.257 This does not include the thousands ofPalestinians reported missing, many of whom are presumably buried dead or alive under
the rubble of destroyed buildings.258 Neither do these numbers account for theincapacitation of local public health and safety authorities in recovering and calculating allof the dead, and thus almost surely represent an undercount, according to experts.259 As of
March 14, 2024, “[m]ore children [have been] killed in Gaza in four months than in four

256

Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160.
257
Onslaught of Violence Against Women and Children in Gaza Unacceptable: UN Experts, U.N. NEWS (May 6,2024),
https://www.ohchr.org/en/press-releases/2024/05/onslaught-violence-against-women-and-children-gazaunacceptable-un-experts. See also Over 2% of Gaza’s Child Population Killed or Injured in Six Months of War, SAVETHE CHILDREN (Apr. 4, 2024), https://www.savethechildren.net/news/over-2-gaza-s-child-population-killed-orinjured-six-months-war.
258
Onslaught of Violence Against Women and Children in Gaza Unacceptable: UN Experts, U.N. NEWS (May 6,2024),
https://www.ohchr.org/en/press-releases/2024/05/onslaught-violence-against-women-and-children-gazaunacceptable-un-experts.
259
See, e.g., Victoria Kim, Death Toll in Gaza Passes 30,000, N.Y. TIMES (Feb. 29, 2024),
https://www.nytimes.com/2024/02/29/world/middleeast/gaza-death-toll-war.html.

36

years of war globally.”260 UNICEF has described Gaza as a “graveyard for . . . children.”261
On December 8, 2023, the head of Palestinian Civil Defense in northern Gaza stated that“due to lack of fuel, rescuers have been left with just one operational vehicle” to retrieve
bodies from under the rubble, leaving Palestinians in Gaza without the proper equipment
to search for loved ones buried under the destruction.262 The extent of death is such thatpeople have been buried in mass graves,263 and “[c]orpses [are] left lying in the road.” 264
Babies have died in incubators because Israel cut off the fuel needed to run facilities at AlShifa Hospital.265 Israel’s policy of forced starvation—through blocking the entry ofnecessary humanitarian aid—has also killed Palestinians in Gaza (described further in
Section 3.a.iii.1).266
76.

Israel has killed Palestinians in Gaza wherever they are—in their homes, hospitals, “safezones,” refugee camps, UN schools, and elsewhere. Israel has destroyed entire buildings
filled with civilians. On October 31, 2023, for example, Israel struck a residential building,killing at least 106 civilians, 54 of whom were children in an attack that Human Rights
Watch called an “apparent war crime.”267 Many Palestinians have been killed by airstrikes
on UNRWA schools (which enjoy inviolability under international law 268) sheltering

260

Clarissa-Jan Lim, More Children Killed in Gaza in Four Months than in Four Years of War Globally: Report,
MSNBC (Mar. 14, 2024), https://www.msnbc.com/top-stories/latest/death-toll-children-gaza-israel-rcna143269.
261
Press Release, UNICEF, Gaza Has Become a Graveyard for Thousands of Children (Oct. 31, 2023),
https://www.unicef.org/press-releases/gaza-has-become-graveyard-thousands-children. See also Press Release,
UNICEF, Children Disproportionately Wearing the Scars of the War in Gaza - Geneva Palais Briefing Note (Apr. 16,2024),
https://www.unicef.org/press-releases/children-disproportionately-wearing-scars-war-gaza-geneva-palaisbriefing-note.
262
Hostilities in the Gaza Strip and Israel | Flash Update #65, OCHA (Dec. 10, 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-65.
263
Press Release, EURO-MED MONITOR, Israel Demolishes Gaza Cemeteries, Confiscates Dead Bodies of Palestinians(Dec. 14, 2023), https://reliefweb.int/report/occupied-palestinian-territory/israel-demolishes-gaza-cemeteriesconfiscates-dead-bodies-palestinians-enar.
264
OCHA, Briefing to the UN Security Council on the humanitarian situation in Israel and the Occupied Palestinian
Territory by Mr. Martin Griffiths (Jan. 12, 2024), https://reliefweb.int/report/occupied-palestinian-territory/mrmartin-griffiths-under-secretary-general-humanitarian-affairs-and-emergency-relief-coordinator-briefing-unsecurity-council-humanitarian-situation-israel-and-occupied-palestinian-territory-12-january-2024-enhe.
265
Hamdi Alkhshali et al., Doctors Race to Save Newborns as Israel Says It’s Battling Hamas Around Gaza’s Largest
Hospital, CNN (Nov. 14, 2023), https://www.cnn.com/2023/11/13/middleeast/gaza-babies-incubators-al-shifahospital-israel-intl-hnk/index.html.
266
Gaza: Israel’s Imposed Starvation Deadly for Children, HUM. RTS. WATCH (Apr. 9, 2024),
https://www.hrw.org/news/2024/04/09/gaza-israels-imposed-starvation-deadly-children; Six Children Die ofMalnutritionin
Gaza
Hospitals:
HealthMinistry,
AL-JAZEERA(Feb
28,2024),
https://www.aljazeera.com/news/2024/2/28/children-die-of-malnutrition-in-gaza-hospitals-health-ministry[hereinafter “Six Children Die”].
267
Gaza: Israeli Strike Killing 106 Civilians an Apparent War Crime, HUM. RTS. WATCH (Apr. 4, 2024),
https://www.hrw.org/news/2024/04/04/gaza-israeli-strike-killing-106-civilians-apparent-war-crime.
268
See Official Statement, UNRWA, The Neutrality and Inviolability of UNRWA Installations Must be Respected at
All Times (June 4, 2021), https://www.unrwa.org/newsroom/official-statements/neutrality-and-inviolability-unrwainstallations-must-be-respected-all; Official Statement, UNRWA, UNRWA Reiterates the Inviolability of its
Installations Must be Respected at All Times (Aug. 11, 2021), https://www.unrwa.org/newsroom/officialstatements/unrwa-reiterates-inviolability-its-installations-must-be-respected-all.

37

displaced families,269 hospitals, refugee camps, and other forms of civilian infrastructure,
as detailed below in Section 3.a.iii. Also as detailed in Section 3.a.iii, Israel has bombedevacuation routes designated as “safe,” thereby killing Palestinians who followed Israeli
evacuation orders. Israeli military forces have shot civilians in front of their families,270
shot civilians waving white flags,271 and opened fire into crowds gathered around aid trucks
desperately seeking food, leading to the death of at least 112 in one incident (see Section
3.b.ii.2).272 Starting in December 2023, Israel intensified its airstrikes on Rafah, thesupposed “safest” area in the south of the Gaza Strip.273 Approximately 1.2 million
Palestinians, out of the 1.7 million internally displaced by Israel’s ongoing military
campaign, are seeking refuge in Rafah.274 During just one night—the night of February 11,2024, and the morning of February 12, 2024—at least 94 Palestinians were killed by Israeli
airstrikes and shelling in Rafah. 275
77.

In the 200 days after October 7, 2023, Israel dropped an estimated 70,000 tons of explosiveson the 2.17 million Palestinians in Gaza.276 Nearly half of the Israeli munitions used havebeen unguided munitions or “dumb bombs,” which are imprecise and pose a grave threat
to civilians,277 particularly in areas such as Gaza, which is one of the most densely‘This Must Stop,’ UN Chief Says as Deaths, Displacement Ripple Across Gaza, U.N. NEWS (Nov. 19, 2023),
https://news.un.org/en/story/2023/11/1143762.
270
Press
Release,OHCHR,
Unlawful
killings
in
Gaza
City
(Dec.
20,
2023),
https://www.un.org/unispal/document/unlawful-killings-in-gaza-city-ohchr-press-release/.
271
Yaniv Kubovich, Preliminary IDF Report: Hostages Killed by Soldiers Waved White Flag, One Yelled for Help in
Hebrew,
HAARETZ(Dec.
16,2023),
https://www.haaretz.com/israel-news/2023-12-16/tyarticle/.premium/preliminary-idf-report-hostages-killed-by-soldiers-waved-white-flag-yelled-helphebrew/0000018c-7283-db38-a9fc-fba363100000; Video of Gaza civilian shot and killed in group while waving whiteflag, NBC NEWS (Jan. 24, 2024), https://www.nbcnews.com/video/video-shows-gaza-civilian-shot-and-killed-ingroup-waving-white-flag-202880581884.
272
Press Release, Al-Mezan, Al-Haq & The Palestinian Center for Human Rights, ‘Flour Massacre’: Impunity Persists
as Israeli Forces Open Fire On Starving Palestinians Seeking Vital Aid (Feb. 29, 2024),
https://www.mezan.org/en/post/46391.
273
Israel/OPT: New Evidence of Unlawful Israeli Attacks in Gaza Causing Mass Civilian Casualties Amid Real Riskof Genocide, AMNESTY INT’L (Feb. 12, 2024), https://www.amnesty.org/en/latest/news/2024/02/israel-opt-newevidence-of-unlawful-israeli-attacks-in-gaza-causing-mass-civilian-casualties-amid-real-risk-of-genocide/.
274
Gaza: Heatwave Brings New Misery and Disease Risk to Rafah, U.N. NEWS (Apr. 25, 2024),
https://news.un.org/en/story/2024/04/1149011. See also Hostilities in the Gaza Strip and Israel – Reported Impact |Day 203, OCHA (Apr. 26, 2024), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impactday-203.
275
Helen Regan & Abeer Salman, Israeli Airstrikes Kill More than 100 in Rafah as International Alarm Mounts over
Anticipated Ground Offensive, CNN (Feb. 12, 2024), https://www.cnn.com/2024/02/12/middleeast/israel-airstrikesrafah-ground-offensive-looms-intl-hnk/index.html.
276
200 Days of Military Attack on Gaza: A Horrific Death Toll Amid Intl. Failure to Stop Israel’s Genocide ofPalestinians, EURO-MED MONITOR (Apr. 24, 2024), https://euromedmonitor.org/en/article/6282/200-days-ofmilitary-attack-on-Gaza%3A-A-horrific-death-toll-amid-intl.-failure-to-stop-Israel’s-genocide-of-Palestinians.
277
Natasha Bertrand & Katie Bo Lillis, Exclusive: Nearly Half of the Israeli Munitions Dropped on Gaza are
Imprecise‘Dumb
Bombs,’USIntelligence
Assessment
Finds,
CNN
(Dec.
14,
2023),
https://www.cnn.com/2023/12/13/politics/intelligence-assessment-dumb-bombs-israel-gaza/index.html.
269

38

populated places in the world.278 Two thousand-pound “dumb bombs” and “bunkerbusters” have regularly killed scores of Palestinians in single strikes.279 On October 10,
Israeli military spokesperson Rear Admiral Daniel Hagari stated, “while balancing
accuracy with the scope of damage, right now we’re focused on what causes maximum
damage.”280
78.

Israeli forces have killed Palestinians regardless of their protected status under international
humanitarian law. As of April 15, 2024, 140 journalists and media workers have been killedin the course of Israel’s military operations in Gaza,281 despite wearing marked jackets andhelmets or traveling in marked press vehicles, which signal their protected status.282
According to the Committee to Protect Journalists, Israel’s bombardment of Gaza has been
the deadliest conflict for journalists ever recorded. 283 As of April 11, 2024, Israeli militaryforces have killed at least 224 aid workers.284 Israeli forces have also killed 182 UNRWA
staff in Gaza as of April 30,285 a number of fatal attacks on UN personnel that has been

Gaza: Nowhere to go, as humanitarian crisis reaches ‘dangerous new low’, U.N. NEWS (Oct. 13, 2023),
https://news.un.org/en/story/2023/10/1142282.
279
Israel/OPT: US-Made Munitions Killed 43 Civilians in Two Documented Israeli Air Strikes in Gaza– New
Investigation, AMNESTY INT’L (Dec. 5, 2023), https://www.amnesty.org/en/latest/news/2023/12/israel-opt-us-mademunitions-killed-43-civilians-in-two-documented-israeli-air-strikes-in-gaza-new-investigation/.
280
Bethan McKernan & Quique Kierzenbaum, ‘We’re Focused on Maximum Damage’: Ground Offensive into Gaza
Seems Imminent, THE GUARDIAN (Oct. 10, 2023), https://www.theguardian.com/world/2023/oct/10/right-now-it-isone-day-at-a-time-life-on-israels-frontline-with-gaza.
281
Hostilities in the Gaza Strip and Israel | Flash Update #153, OCHA (Apr. 15, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-153.
282
Press Release, OHCHR, Gaza: UN Experts Condemn Killing and Silencing of Journalists (Feb. 1, 2024),
https://www.ohchr.org/en/press-releases/2024/02/gaza-un-experts-condemn-killing-and-silencing-journalists.
283
Gaza War 'Most Dangerous Ever' for Journalists, Says Rights Group, REUTERS (Dec. 21, 2023)
https://www.reuters.com/world/middle-east/gaza-war-most-dangerous-ever-journalists-says-rights-group-2023-1221.
284
Press Release, UN Security Council, Press Statement on Humanitarian Workers and Threat of Famine in Gaza
(Apr. 11, 2024), https://press.un.org/en/2024/sc15658.doc.htm; Gaza: ‘No Protection’ for Civilians, Aid Workers,
Security Council Hears, U.N. NEWS (Apr. 4, 2024), https://news.un.org/en/story/2024/04/1148276.
285
UNRWA Situation Report #105 on the Situation in the Gaza Strip and the West Bank, including East Jerusalem,
UNRWA (Apr. 30, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-105-situation-gaza-stripand-west-bank-including-east-Jerusalem.
278

39

“never seen in . . . history.”286 Doctors,287 Palestine Red Crescent Society staff, 288 andhundreds of paramedics 289 have been among those killed by Israeli forces.
79.

In late April 2024, 283 bodies were recovered from a mass grave at Gaza’s Nasser Medical
Complex in Khan Younis.290 According to a spokesperson for the UN High Commissioner
for Human Rights, “among the deceased were allegedly older people, women, andwounded, while others were found with their hands . . . tied and stripped of their clothes,”
adding that there could be “many more” Palestinian victims.291 Two additional mass graves
with 30 Palestinian bodies were found in the courtyard of Al-Shifa Hospital in Gaza City.292

3.a.ii. Israel has caused serious bodily or mental harm to Palestinians
80.

Israel has injured over 77,765 Palestinians in Gaza since October 7, 2023.293 Many of thetens of thousands of Palestinians injured are unable to access medical care, as active
targeting of healthcare facilities and fuel shortages caused by the Israeli siege haveincapacitated the healthcare system in Gaza.294 Over 1,000 Palestinian children have had a286

Situation Report #75 on the Situation in the Gaza Strip and the West Bank, including East Jerusalem, UNRWA(Feb 10, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-75-situation-gaza-strip-and-westbank-including-east-Jerusalem; Antonio Guterres (@antonioguterres), X (Dec. 22, 2023, 8:01 PM),https://x.com/antonioguterres/status/1738364044979896821?lang=en.
287
Hostilities in the Gaza Strip and Israel | Flash Update #46, OCHA (Nov. 21, 2023),
https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flashupdate-46.
288
IFRC on Three Palestine Red Crescent members killed: ‘Unacceptable,’ INTERNATIONAL FEDERATION OF RED
CROSS AND RED CRESCENT SOCIETIES [hereinafter IFRC] (Feb. 2, 2024), https://www.ifrc.org/article/ifrc-threepalestine-red-crescent-members-killed-unacceptable.
289
Hostilities in the Gaza Strip and Israel | Flash Update #67, OCHA (Dec. 12, 2023),
https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flashupdate-67.
290
Mass Graves in Gaza Show Victims’ Hands Were Tied, Says UN Rights Office, U.N. NEWS (Apr. 23, 2024),
https://news.un.org/en/story/2024/04/1148876. See also Liam Stack, Hiba Yazbek & Nick Cumming-Bruce, U.N.
Calls for Inquiry into Mass Graves at 2 Gaza Hospitals, N.Y. TIMES (Apr. 23, 2024),
https://www.nytimes.com/2024/04/23/world/middleeast/gaza-mass-grave.html; Ruth Michaelson, UN Rights Chief‘horrified’ by reports of mass graves at two Gaza hospitals, THE GUARDIAN (Apr. 23, 2024),
https://www.theguardian.com/world/2024/apr/23/un-rights-chief-horrified-by-reports-of-mass-graves-at-two-gazahospitals.
291
Mass Graves in Gaza Show Victims’ Hands Were Tied, Says UN Rights Office, U.N. NEWS (Apr. 23, 2024),
https://news.un.org/en/story/2024/04/1148876.
292
Id.
293
Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160.
294
See Lifesaving Medical Care Collapsing under Assault in Gaza: WHO, U.N. NEWS (Feb. 16, 2024),
https://news.un.org/en/story/2024/02/1146632; Press Release, OHCHR, Gaza: U.N. Expert Condemns ‘Unrelenting
War’ on Health System amid Airstrikes on Hospitals and Health Workers (Dec. 7, 2023),
https://www.ohchr.org/en/press-releases/2023/12/gaza-un-expert-condemns-unrelenting-war-health-system-amidairstrikes.

40

limb or multiple limbs amputated.295 Many Palestinians have been severely burned.296 As
discussed further in Section 3.a.iii, the lack of medical supplies in hospitals has meant thatinjured Palestinians have often had to endure painful, invasive procedures withoutanesthesia.297
81.

Furthermore, the continued bombardment, as well as Israel’s obstruction of the entry ofadequate humanitarian aid into Gaza, has exacerbated mental health problems forPalestinians in Gaza. Children have been most acutely impacted, exhibiting post-traumaticstress disorder, anxiety, and severe depression, among other behavioral health issues.298 In
October 2023, sixteen days into Israel’s assault, a psychologist in Gaza stated that children
had “started to develop serious trauma symptoms such as convulsions, bed wetting, fear,
aggressive behavior, nervousness, and not leaving their parents’ sides.”299 Providers in
Gaza were forced to develop a new acronym after October 7, “WCNSF,” which stands for“Wounded Child, No Surviving Family,” underscoring the severe bodily and mental harmthat Israel has caused Palestinian children.300 UNICEF reported that “one million children
in Gaza are traumatized by the war.” 301 Children as young as five years old have expressed“they would prefer to die,” according to the head of Médecins Sans Frontières (Doctors
Without Borders, or MSF) in an address to the UN Security Council on February 22,2024.302 “Children who do survive this war will not only bear the visible wounds oftraumatic injuries, but the invisible ones too. . . . There is a repeated displacement, constantfear and witnessing family members literally dismembered before their eyes.” 303 This mostrecent mass traumatization has exacerbated already dire mental health circumstances inGaza, with studies indicating that huge segments of the population were suffering from295

UNICEF: Gaza Strip most dangerous place in the world for children, EURONEWS (Feb. 12, 2023),
https://www.euronews.com/2023/12/02/unicef-gaza-strip-most-dangerous-place-in-the-world-for-children.
296
Gaza Strip: MSF Treating Patients for Severe Burns Following Airstrike, MÉDECINS SANS FRONTIÈRES [hereinafter
MSF] (Nov. 19, 2023), https://www.doctorswithoutborders.org/latest/gaza-strip-msf-treating-patients-severe-burnsfollowing-airstrike-0.
297
Hostilities in the Gaza Strip and Israel | Flash Update #32, OCHA (Nov. 7, 2023),
https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flashupdate-32.
298
Gaza: “Profoundly Alarming” Mental Health and Medical Needs, PROJECT HOPE (Jan. 5, 2024),
https://www.projecthope.org/gaza-profoundly-alarming-mental-health-and-medical-needs/.
299
Harriet Sherwood, Children in Gaza ‘Developing Severe Trauma’ After 16 Days of Bombing, THE GUARDIAN (Oct.
22, 2023), https://www.theguardian.com/world/2023/oct/22/children-in-gaza-developing-severe-trauma-after-16days-of-bombing.
300
See, e.g., MSF Briefing on Gaza to the UN Security Council, MSF (Feb. 22, 2024), https://www.msf.org/msfbriefing-gaza-un-security-council;
Childrenunder
Attack,
OCHA
(Jan.
17,
2024),
https://www.unocha.org/news/gaza-children-under-attack.
301
Juan Carlos Sanz, UNICEF Official in Palestine: ‘There Are One Million Children in Gaza Traumatized by theWar,’ EL PAÍS (Jan. 30, 2024), https://english.elpais.com/international/2024-01-30/unicef-official-in-palestine-thereare-one-million-children-in-gaza-traumatized-by-the-war.html.
302
MSF Briefing on Gaza to the UN Security Council, MSF (Feb. 22, 2024), https://www.msf.org/msf-briefing-gazaun-security-council.
303
Id.

41

symptoms consistent with post-traumatic stress disorder and suicidal ideation prior to
October 7, 2023.304
82.

Israeli forces have engaged in cruel, inhuman, and degrading treatment of Palestinians in
Gaza that has directly caused serious bodily and mental harm. Video evidence shows Israeli
forces rounding up hundreds of Palestinians in North Gaza—boys as young as twelve years
old—blindfolding them, forcing them to strip to their underwear, photographing them, andabducting them to a detention camp where they have been subjected to dehumanizing
conditions.305 The arbitrary arrest and subsequent ill-treatment of Palestinians are flagrantviolations of international law.306 Testimonies of released detainees have detailed Israel’s
cruelty toward and degradation of thousands of detained Palestinians, among them
Palestinians from Gaza, including stripping them, beating them, holding them in cages,
attacking them with dogs, and denying them food and bathroom access, among other cruelpractices.307 Additionally, firsthand testimony to Euro-Med Human Rights Monitor
indicates that Israeli soldiers have invited Israeli civilians to witness their torture andinhuman treatment of Palestinian detainees.308 Euro-Med Human Rights Monitor has also
reported that Israeli soldiers have deliberately driven tanks over “dozens” of Palestinian
civilians while they were alive. 309 Many members of the Israeli military forces havethemselves documented their cruel treatment of detainees and disseminated thephotographs and videos on social media or the Israeli army’s Telegram channel “72 Virgins– Uncensored.”310

304

Seventy percent of Gazans and 57 percent of West Bank residents surveyed reported symptoms consistent with
post-traumatic stress disorder, with the prevalence higher for women and those who had been displaced. Alia
Aghajanian & Arden Finn, The Importance of Measuring Mental Health in Trauma-Exposed Populations: The Caseof West Bank & Gaza, WORLD BANK BLOGS (Mar. 24, 2022), https://blogs.worldbank.org/arabvoices/the-importanceof-measuring-mental-health-in-trauma-exposed-populations-the-case-of-west-bank-gaza. An estimated 38 percent ofyoung people in the Gaza Strip have considered suicide at least once. On the Brink: Gaza’s Youth Are Turning to
SuicideAmid
Growing
Desperation,
ISLAMICRELIEFWORLDWIDE(Nov.
29,2020),
https://reliefweb.int/report/occupied-palestinian-territory/brink-gaza-s-youth-are-turning-suicide-amid-growing).
305
Israel Debre & Wafaa Shurafa, Hungry, Thirsty and Humiliated: Israel’s Mass Arrest Campaign Sows Fear in
Northern Gaza, AP NEWS (Dec. 14, 2023), https://apnews.com/article/palestinians-detained-israel-hamas-gaza-war0ecbc338e4024add059b87b38022086d.
306
Press Release, OHCHR, OPT: Disturbing Reports from the North of Gaza of Mass Detentions, Ill-Treatment andEnforced Disappearances of Possibly Thousands of Palestinians (Dec. 16, 2023), https://reliefweb.int/report/occupiedpalestinian-territory/un-human-rights-office-opt-disturbing-reports-north-gaza-mass-detentions-ill-treatment-andenforced-disappearances-possibly-thousands-palestinians.
307“New Guantanamo”: Euro-Med Monitor Calls for International Probe into Israel’s Torture and Murder of Gaza
Detainees, EURO-MED MONITOR (Dec. 18, 2023), https://reliefweb.int/report/occupied-palestinian-territory/newguantanamo-euro-med-monitor-calls-international-probe-israels-torture-and-murder-gaza-detainees-enar.
308“They Brought Israeli Civilians to Watch Our Nude Torture”: IDF Torture of Palestinian Prisoners Is Turned into
Entertainment for Israeli Viewers, EURO-MED MONITOR (Feb. 12, 2024), https://euromedmonitor.org/en/article/6153/“They-brought-Israeli-civilians-to-watch-our-nude-torture”:-IDF-torture-of-Palestinian-prisoners-is-turned-intoentertainment-for-Israeli-viewers.
309
Israeli Tanks Have Deliberately Run over Dozens of Palestinian Civilians Alive, EURO-MED MONITOR (Mar. 4,2024), https://euromedmonitor.org/en/article/6202.
310
Yaniv Kubovich, Israeli Army Admits Running Unauthorized Graphic Gaza Influence Op, HAARETZ (Feb 4. 2024),
https://www.haaretz.com/israel-news/security-aviation/2024-02-04/ty-article/.premium/israeli-army-its-admits-staffwas-behind-graphic-gaza-telegram-channel/0000018d-70b4-dd6e-a98d-f4b6a9c00000.

42

83.

UN experts “expressed alarm over credible allegations of egregious human rights
violations” committed by the Israeli military against Palestinian women and girls in Gaza,
including “targeting and extrajudicial killing . . . in places where they sought refuge, or
while fleeing,” arbitrary detention, inhuman and degrading treatment, and denial of basic
needs, including menstrual pads.”311 In particular, female Palestinian detainees havereported having been subjected to multiple forms of sexual violence and harassment,
including “being stripped naked and searched by male Israeli army officers,” 312 threats ofsexual violence and rape, and torture while in the custody of the Israeli military.313 Some
reported that their photos in “degrading circumstances” were taken and uploaded online by
Israeli military personnel.314

3.a.iii. Israel has deliberately inflicted on Palestinians in Gaza conditions of life calculated to bringabout its physical destruction in whole or in part84.

The ICJ has recognized several categories of acts that qualify as Article II(c) violations,
including “deprivation of food, medical care, shelter or clothing, as well as lack of hygiene,[and] systematic expulsion from homes.”315 Similarly, international criminal tribunals havedefined the deliberate infliction on a group of “conditions calculated to bring about its
physical destruction, in whole or in part” to include “subjecting a group of people to a
subsistence diet, systematic expulsion from homes and the reduction of essential medical
services below minimum requirement” 316 as well as “withholding sufficient living
accommodation for a reasonable period.”317 Israel has committed all these acts in Gaza.
Israeli actions falling within these categories are described in Sections 3.a.iii (1-6) of thisreport. Israel’s full destruction of Gaza’s education system (Section 3.a.iii.5) and cultural
heritage (Section 3.a.iii.6) are further indications of Israel’s deliberate destruction ofPalestinian life in Gaza.

3.a.iii.1. Israel has deprived Palestinians in Gaza of adequate food and water to survive
85.

Israel has deprived Palestinians in Gaza of necessities for survival since October 7, 2023.
The entire population of Gaza (about 2.17 million) “is facing high levels of acute food311

Press Release, OHCHR, UN Experts Appalled by Reported Human Rights Violations against Palestinian Womenand Girls (Feb. 19, 2024), https://www.ohchr.org/en/press-releases/2024/02/israelopt-un-experts-appalled-reportedhuman-rights-violations-against.
312
Id.
313
Id.; In Testimonies to Euro-Med Monitor, Women from Gaza Report Being Subjected to Sexual Violence, Torture
by Israeli Forces, EURO-MED MONITOR (Feb. 27, 2024), https://euromedmonitor.org/en/article/6188/In-testimoniesto-Euro-Med-Monitor,-women-from-Gaza-report-being-subjected-to-sexual-violence,-torture-by-Israeli-forces; Julia
Frankel, ‘They Wanted to Humiliate Us.’ Palestinian Women Detained by Israel Allege Abuse in Israeli Custody, AP
NEWS (Mar. 2, 2024), https://apnews.com/article/israel-hamas-gaza-detainee-palestinian-deaths-hospitals51d4727a1365b9e06198579c3eb856f8.
314
Press Release, OHCHR, UN Experts Appalled by Reported Human Rights Violations against Palestinian Womenand Girls (Feb. 19, 2024), https://www.ohchr.org/en/press-releases/2024/02/israelopt-un-experts-appalled-reportedhuman-rights-violations-against.
315
Croat. v. Serb. at para. 161.
316
Akayesu Trial Judgment at para. 506.
317
Kayishema Trial Judgment at para. 116.

43

insecurity,”318 with about 1.1 million Palestinians experiencing “catastrophic hunger” dueto Israel’s siege.319 Director of Coordination at the UN Office for the Coordination of
Humanitarian Affairs Ramesh Rajasingham warned in February that over half a million
Palestinians—one quarter of the population of Gaza—are “one step away from famine.”320
In some areas, famine has already taken hold, as confirmed by the heads of the U.S. Agency
for International Development (USAID) and the World Food Programme (WFP).321 The
UN Special Rapporteur on the Right to Food has warned, “[e]very single person in Gazais hungry right now. . . . We’ve never seen an entire population, 2.2 million people, madeto go hungry this quickly and this completely.”322 Medical Aid for Palestinians CEO
Melanie Ward has stated, “[t]his is the fastest decline in a population's nutrition status everrecorded. That means children are being starved at the fastest rate the world has everseen.”323 As conditions worsen, at least 28 children have reportedly died of starvation as ofApril 2024.324
86.

The UN High Commissioner of Human Rights stated that “the extent of Israel’s continued
restrictions on the entry of aid into Gaza, together with the manner in which it continues to
conduct hostilities, may amount to the use of starvation as a method of war, which is a war

318

INTEGRATED FOOD SECURITY PHASE CLASSIFICATION, GAZA STRIP: ACUTE FOOD INSECURITY SITUATION FOR 15
FEBRUARY - 15 MARCH 2024 AND PROJECTION FOR 16 MARCH - 15 JULY 2024 (Mar. 18, 2024),
https://www.ipcinfo.org/ipc-country-analysis/details-map/en/c/1156872/?iso3=PSE.
319
Elizabeth Bryant, Hunger in Gaza: Famine Findings a ‘Dark Mark’ on the World, Says WFP Palestine Country
Director, WFP (Mar. 18, 2024), https://www.wfp.org/stories/hunger-gaza-famine-findings-dark-mark-world-sayswfp-palestine-country-director.
See
also
Emergency:
Stateof
Palestine,
WFP,
https://www.wfp.org/emergencies/palestine-emergency (last visited May 1, 2024); INSECURITY INSIGHT, FLASHANALYSIS REPORT: OVER FIVE MONTHS OF ATTACKS ON FOOD SECURITY IN GAZA (Mar. 2024),
https://insecurityinsight.org/wp-content/uploads/2024/03/Flash-Analysis-Over-Five-Months-of-Attacks-on-FoodSecurity-in-Gaza.pdf; Palestine, WFP, https://www.wfp.org/countries/palestine (last visited Apr. 30, 2024).
320
Ramesh Rajasingham, Director of OCHA Coordination Division, Updating the Security Council on Food Security
Risks in Gaza, OCHA (Feb. 27, 2024), https://www.ochaopt.org/content/mr-ramesh-rajasingham-updating-securitycouncil-food-security-risks-gaza.
321
Emma Graham-Harrison & Julian Borger, Aid ‘Still Not Reaching Gaza’, as Top US Official Warns Famine Has
Started, THE GUARDIAN (Apr. 12, 2024), https://www.theguardian.com/world/2024/apr/11/aid-still-not-reachinggaza-as-top-us-official-warns-famine-has-started; Kyla Guilfoil, World Food Programme Director Cindy McCain:
Northern Gaza Is in a ‘Full-Blown’ Famine, NBC NEWS (May 3, 2024), https://www.nbcnews.com/politics/politicsnews/world-food-programme-director-cindy-mccain-gaza-full-blown-famine-rcna150644.
322
DemocracyNow!
(@democracynow),
X
(Feb.
29,
2024,
8:50
AM),
https://x.com/democracynow/status/1763200098039709780.
323
MedicalAid
for
Palestinians(@MedicalAidPal),
X
(Feb.
29,
2024,
3:59
AM),
https://x.com/MedicalAidPal/status/1763172220900151317; see also Hostilities in the Gaza Strip and Israel | Flash
Update #123, OCHA (Feb. 21, 2024), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update123 (noting that food insecurity situation is “. . . a decline in a population’s nutritional status that is unprecedented
globally in three months”).
324
Gaza: Israel’s Imposed Starvation Deadly for Children, HUM. RTS. WATCH (Apr. 9, 2024),
https://www.hrw.org/news/2024/04/09/gaza-israels-imposed-starvation-deadly-children. See also Acute Malnutrition
Has Doubled in One Month in the North of Gaza Strip: UNICEF, UNICEF (Mar. 15, 2024),
https://www.unicef.org/press-releases/acute-malnutrition-has-doubled-one-month-north-gaza-strip-unicef.

44

crime.”325 The WHO called Israel’s siege “a cruel campaign” directed “against the whole
population of Gaza,”326 and Human Rights Watch stated that Israel is “using starvation asa method of warfare.”327 In March 2023, the European Union’s High Representative for
Foreign Affairs and Security Policy Josep Borell Fontelles, and Commissioner for Crisis
Management Janez Lenarčič, issued a joint statement warning that “[h]unger cannot be
used as a weapon of war. What we are seeing is not a natural hazard but a manmade
disaster, and it is our moral duty to stop it.”328
87.

On October 9, 2023, Israel intensified the 16-year blockade on Gaza to a total siege,
prohibiting the entry of food, water, and fuel, and disconnecting electricity.329 Israeli
authorities cut off Gaza’s electricity on October 11, 2023, and Palestinians in Gaza havesince lived under a blackout, with Gaza’s only solar power plant having been depleted offuel.330

88.

Humanitarian relief in Gaza has been limited and gravely inadequate. On October 15, 2023,
Israel resumed the supply of water to some areas in South Gaza and allowed limited
humanitarian aid in through the Rafah border crossing on October 21, 2023.331 However,aid access to the north has been “largely severed”—not including the brief pause whichallowed some flour and biscuits to the population. 332 The Palestinian Red Crescent Society
estimated that merely 9,800 humanitarian aid trucks were permitted to enter Gaza between
October 21, 2023 and February 1, 2024, averaging 94.5 trucks per day;333 in April 2024,

325

Press Release, OHCHR, Comment by UN High Commissioner for Human Rights Volker Türk on the Risk ofFamine in Gaza (Mar. 19, 2024), https://www.ohchr.org/en/statements-and-speeches/2024/03/comment-un-highcommissioner-human-rights-volker-turk-risk-famine.
326
Press Briefing, Statement of Christian Lindmeier (World Health Organization spokesperson), Briefing, U.N. WEB
TV (Dec. 8, 2023), https://webtv.un.org/en/asset/k1e/k1eez0ym7c.
327Israel: Starvation Used as Weapon of War in Gaza, HUM. RTS. WATCH (Dec. 18, 2023),
https://www.hrw.org/news/2023/12/18/israelstarvation-used-weapon-war-gaza. See also Gaza: Israel’s Imposed
Starvation Deadly for Children, HUM. RTS. WATCH (Apr. 9, 2024), https://www.hrw.org/news/2024/04/09/gazaisraels-imposed-starvation-deadly-children.
328
Statement by High Representative Josep Borrell and Commissioner for Crisis Management Janez Lenarčič on
Famine in Gaza, European Commission (Mar. 18, 2024), https://civil-protection-humanitarian-aid.ec.europa.eu/newsstories/news/statement-high-representative-josep-borrell-and-commissioner-crisis-management-janez-lenarcicfamine-2024-03-18_en.
329
Israeli Defense Minister Orders ‘Complete Siege’ on Gaza, AL-JAZEERA (Oct. 9, 2023),
https://www.aljazeera.com/program/newsfeed/2023/10/9/israeli-defence-minister-orders-complete-siege-on-gaza.
330
Hostilities in the Gaza Strip and Israel | Flash Update #104, OCHA (Jan. 28, 2024),
https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flashupdate-104.
331
Israel: Starvation Used as Weapon of War in Gaza, HUM. RTS. WATCH (Dec. 18, 2023),
https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza.
332
Id.
333
PRCS (@PalestineRCS), X (Feb. 4, 2024, 3:22 PM), https://x.com/PalestineRCS/status/1754239103996969299.

45

the average daily number of trucks entering Gaza was 190 trucks, which falls far below theminimum UN humanitarian target of 500 aid trucks per day.334
89.

Despite coordinating all movements with Israel, UNRWA humanitarian aid trucks havebeen damaged by Israeli attacks. 335 As the Secretary-General commented:
Many people are measuring the effectiveness of the humanitarian operationin Gaza based on the number of trucks. . . . This is a mistake. The real
problem is that the way Israel is conducting this offensive is creating
massive obstacles to the distribution of humanitarian aid inside Gaza. 336

90.

On April 1, 2024, the Israeli military shelled three cars that belonged to World Central
Kitchen (WCK), a humanitarian organization providing food aid within Gaza. The attack
killed seven aid workers.337 The vehicles, struck within a mile and a half of each other,bore the distinctive WCK logo on their roofs.338 A former Israeli artillery officer suggested
in an interview with the Washington Post that the vehicles were struck with a missile thatwas “very accurate with significant penetrating power,” indicating that the strikes weretargeted.339 The Israeli military attacked the convoy despite “coordinating movements”
with WCK.340 Following the strike, WCK suspended its Gaza operations, 341 and prompted
vessels delivering seaborne aid from Cyprus to turn back. 342 The American Near East
Refugee Aid (ANERA), another humanitarian aid organization and WCK partner
providing food, water, and medicine—including 150,000 meals per day—in Gaza, halted
its Gaza operations after Israel’s strike on the WCK vehicles, concluding “delivering aid

334

Situation Report #105 on the Situation in the Gaza Strip and the West Bank, Including East Jerusalem, UNRWA(Apr. 30, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-105-situation-gaza-strip-and-westbank-including-east-Jerusalem. See also Situation Report #104 on the Situation in the Gaza Strip and the West Bank,
Including East Jerusalem, UNRWA (Apr. 26, 2024), https://www.unrwa.org/resources/reports/unrwa-situationreport-104-situation-gaza-strip-and-west-bank-including-east-Jerusalem.
335
Phillippe Lazzarini (UNRWA Comm’r General) (@UNLazzarini), X (Feb. 5, 2024, 9:24 AM),https://x.com/UNLazzarini/status/1754511426406744518.
336
Remarks
to
the
Media
by
the
Secretary-General,
OCHA
(Dec.
22,
2023),
https://www.ochaopt.org/content/remarks-media-secretary-general.
337
7 WCK Team Members Killed in Gaza, WORLD CENTRAL KITCHEN (Apr. 2, 2024), https://wck.org/news/gazateam-update.
338
Steve Hendrix, Imogen Piper, Meg Kelly & Miriam Berger, How Israeli strikes on a World Central Kitchen Convoy
in Gaza Unfolded, WASH. POST (Apr. 2, 2024), https://www.washingtonpost.com/world/2024/04/02/israel-strikewck-huamanitarian-convoy/.
339
Id.
340 340
7 WCK Team Members Killed in Gaza, WORLD CENTRAL KITCHEN (Apr. 2, 2024), https://wck.org/news/gazateam-update.
341
Wafaa Shurafa & Samy Magdy, World Central Kitchen halts Gaza operations after Israeli strike kills 7 aid
workers, PBS NEWS HOUR (Apr. 2, 2024), https://www.pbs.org/newshour/world/world-central-kitchen-halts-gazaoperations-after-israeli-strike-kills-7-aid-workers.
342
Michele Kambas, Gaza Sea Corridor Aid Returns to Cyprus After Israel kills NGO workers, REUTERS (Apr. 2,2024), https://www.reuters.com/world/cyprus-president-says-cyprus-gaza-corridor-will-continue-operate-2024-0402/.

46

safely is no longer feasible.”343 ANERA resumed operations a week later,344 and WCK
announced resuming operations on April 28.345 This was not Israel’s first strike on different
elements of the aid distribution system. On March 13, 2024, an Israeli airstrike damaged
an aid distribution center in Rafah, one of the few UNRWA aid distribution centersremaining in Gaza.346 UNRWA Commissioner-General Phillippe Lazzarini noted that the
Israeli authorities were informed of the coordinates of the center the day before thestrike.347
91.

Since the ICJ’s ruling on provisional measures, Israel has reduced the access ofhumanitarian aid trucks even further: Israel allowed 2,784 trucks into Gaza in the monthfollowing the ruling—44 percent less than the preceding month. 348 An Oxfam reportcharacterized Israel’s behavior as “actively hindering” the provision of humanitarian aid. 349

92.

The Israeli policy of continuously blocking fuel entry into Gaza has exacerbated dire foodand water shortages. 350 The lack of fuel has caused the shutdown of bakeries, water
desalination plants, wells, hospitals, and other key facilities necessary for survival. 351 By
November 7, 2023, no bakery in North Gaza was operational due to a lack of fuel, water,
and flour, as well as structural damage from shelling.352 It was not until April 2024 thatfour bakeries resumed operations in North Gaza for the first time in 170 days.353 The fueland water shortages have had a devastating impact on agriculture, as livestock have diedfrom a shortage of fodder and water, and fields have become barren due to the lack of fuel343

Anera is Pausing Gaza Operations Amid Rising Threats and Attack on WCK, ANERA (Apr. 2, 2024),
https://www.anera.org/blog/anera-is-pausing-gaza-operations-amid-rising-threats-and-attack-on-wck/.
344
Sean Carroll, Statement from ANERA’s President on Resuming Operations in Gaza, ANERA (Apr. 11, 2024),
https://www.anera.org/blog/anera-president-statement-on-resuming-gaza-operations/.
345
World Central Kitchen Resuming Gaza Operations, WORLD CENTRAL KITCHEN (Apr. 28, 2024),
https://wck.org/news/chefs-for-gaza.
346
Hostilities in the Gaza Strip and Israel | Flash Update #139, OCHA (Mar. 14, 2024),
http://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-139.
347
Id.
348
Press Release, Oxfam, Israel Government Continues to Block Aid Response Despite ICJ Genocide Court Ruling(Mar. 17, 2024), https://www.oxfam.org/en/press-releases/israel-government-continues-block-aid-response-despiteicj-genocide-court-ruling.
349
Id.
350
Hostilities in the Gaza Strip and Israel - reported impact | Day 208, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-208.
351
Hostilities in the Gaza Strip and Israel | Flash Update #40, OCHA (Nov. 15, 2023),
https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flashupdate-40-enarhe; Gaza: Lack of Fuel Threatening to Shut Down Entire Humanitarian Operation, U.N. NEWS (Nov.
16, 2023), https://news.un.org/en/story/2023/11/1143672.
352
Hostilities in the Gaza Strip and Israel | Flash Update #39, OCHA (Nov. 14, 2023),
http://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-39. See also Aid Brings a Gaza Bakery
Back to Life, REUTERS (Apr. 16, 2024), https://www.reuters.com/world/middle-east/aid-brings-gaza-bakery-back-life2024-04-15/.
353
WFP Palestine Emergency Response External Situation Report #18, WFP (Apr. 24, 2024),
https://reliefweb.int/report/occupied-palestinian-territory/wfp-palestine-emergency-response-external-situationreport-18-23-april-2024.

47

to pump irrigation water. 354 Between November 24, 2023, and April 21, 2024, Israel
allowed 12,340 tons of cooking gas into Gaza, with an average of approximately 82 tons
per day.355 This falls woefully short of the necessary amount to maintain subsistence andis 68 percent lower than the daily average between January and September 2023.356 The
impact of the fuel shortages is especially serious in North Gaza, where “families have been
forced to rely on expensive and unsafe alternatives, such as burning firewood, charcoal,plastic and chemicals,” leading to serious risks of respiratory diseases.357
93.

The impact of the siege on Palestinians has been disastrous. The World Food Program
declared in March 2024 that Palestinians in Gaza were “starving to death,” and that half ofGaza’s population was struggling with “catastrophic hunger,” leading to the highest levelsof hunger ever registered by the WFP’s Integrate Food Security Phase Classification (IPC)
system.358 According to UNICEF, 1 in 3 children under two in northern Gaza suffer fromacute malnutrition.359 The only water desalination plant in North Gaza is not functional.360
According to the UN Humanitarian Coordinator, the acute shortage of clean and safe waterand the disruption of sanitation systems are causing waterborne diseases and are leading todire disease.361 MSF reported in February 2024 that only about 0.63 liters of clean water isavailable per person per day to Palestinians in Gaza,362 falling far short of the WFP’s“survival threshold” of three liters.363

354

Hostilities in the Gaza Strip and Israel | Flash Update #51, OCHA (Nov. 26, 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-51.
355
Hostilities in the Gaza Strip and Israel | Flash Update #156, OCHA (Apr. 22, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-156.
356
Id.
357
Id.
358
Famine Imminent in Northern Gaza, New Report Warns, WFP (Mar. 18, 2024), https://www.wfp.org/news/famineimminent-northern-gaza-new-report-warns.
359
Press Release, UNICEF, Acute Malnutrition Has Doubled in One Month in the North of Gaza Strip (Mar. 15, 2024),
https://www.unicef.org/sop/press-releases/acute-malnutrition-has-doubled-one-month-north-gaza-strip-unicef.
360
Hostilities in the Gaza Strip and Israel | Flash Update #66, OCHA (Dec. 11, 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-66.
361
UN Says Waterborne Illnesses Spread in Gaza Due to Heat, Unsafe water, REUTERS (Apr. 12, 2024),
https://www.reuters.com/world/middle-east/un-says-waterborne-illnesses-spread-gaza-due-heat-unsafe-water-202404-12/.
362
Water: A Resource More Precious Each Day in Gaza, MSF (Feb. 8, 2024),
https://www.doctorswithoutborders.org/latest/water-resource-more-precious-each-day-gaza.
363
Press Release, UNICEF, ‘Barely a Drop to Drink’: Children in the Gaza Strip Do Not Access 90 Per Cent of their
Normal Water Use (Dec. 20, 2023), https://www.unicef.org/press-releases/barely-drop-drink-children-gaza-strip-donot-access-90-cent-their-normal-water-use.

48

3.a.iii.2. Israel has forcibly displaced the majority of Palestinians in Gaza94.

As of April 21, 2024, 1.7 million people, or 75 percent of the population, have been
displaced across Gaza. 364 This includes many families displaced multiple times, as they areforced to repeatedly relocate in search of safety. 365

95.

Since October 13, 2023, Israel has issued numerous evacuation orders demanding that
Palestinians abandon their homes and evacuate to other parts of Gaza. An October 13,
2023, evacuation order targeted 1.1 million Palestinians residing in North Gaza, ordering
their relocation to southern Gaza and requiring that they complete the evacuation within
24 hours.366 The International Committee of the Red Cross called “the evacuation orders,
coupled with the complete siege,” incompatible with international humanitarian law. 367 The
WHO stated that “[f]orcing more than 2000 patients to relocate to southern Gaza, where
health facilities are already running at maximum capacity and unable to absorb a dramaticrise in the number of patients, could be tantamount to a death sentence.” 368 Despite calls by
UN agencies and humanitarian organizations, including the Norwegian Refugee Counciland Amnesty International, for Israel to rescind this order,369 Israel has maintained theevacuation order and issued several more orders for populations in the north.370

96.

The fates of the Palestinians who were unable or unwilling to leave their homes and those
who fled the north both have been characterized by acute suffering. Israel has subjected
Palestinians remaining in North Gaza to intense bombing371 and other cruel, inhuman, anddegrading treatment, such as mass detention of men and boys and forcing them to strip totheir underwear.372 Many of these abuses have been filmed and widely circulated by the
Israeli perpetrators themselves.373 Palestinians who fled to the south pursuant to the364

Situation Report #103 on the Situation in the Gaza Strip and the West Bank, including East Jerusalem, UNRWA(Apr. 23, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-103-situation-gaza-strip-and-westbank-including-east-Jerusalem.
365
Id.
366
Israeli Defence Forces (@IDF), X (Oct. 13, 2023, 6:50AM), https://x.com/IDF/status/1712707301369434398.
367
Israel and the occupied territories: Evacuation order of Gaza triggers catastrophic humanitarian consequences,
ICRC, (Oct. 13, 2023), https://www.icrc.org/en/document/israel-and-occupied-territories-evacuation-order-of-gazatriggers-catastrophic-humanitarian-consequences.
368
Evacuation Orders by Israel to Hospitals in Northern Gaza Are a Death Sentence for the Sick and Injured, WHO(Oct. 14, 2023), https://www.who.int/news/item/14-10-2023-evacuation-orders-by-israel-to-hospitals-in-northerngaza-are-a-death-sentence-for-the-sick-and-injured.
369
Helen Regan, et. al., Israel Tells 1.1 million Gazans to Evacuate South. UN says Order is ‘Impossible’, CNN (Oct.
13, 2023), https://edition.cnn.com/2023/10/13/middleeast/israel-gaza-hamas-war-friday-intl-hnk/index.html.
370
Hostilities in the Gaza Strip and Israel | Flash Update #57, OCHA (Dec. 2, 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-57.
371
Id.
372
News Release, OHCHR, Disturbing reports from the north of Gaza of mass detentions, ill-treatment and enforced
disappearances of possibly thousands of Palestinians (Dec. 16, 2023), https://reliefweb.int/report/occupiedpalestinian-territory/un-human-rights-office-opt-disturbing-reports-north-gaza-mass-detentions-ill-treatment-andenforced-disappearances-possibly-thousands-palestinians.
373
Quds News Network (@QudsNen), X (Dec. 25, 2023), https://x.com/QudsNen/status/1739315746163859606.

49

evacuation orders have been bombed on purportedly “safe routes.”374 For residents of thesouth and new arrivals, Israel’s promises of safety there have been belied by ongoingbombardment. Reports show that Israel has routinely used 2,000-pound bombs in SouthGaza, despite designating the area as safe for civilians.375
97.

In Gaza, as the UN Secretary-General’s office has said that there is “nowhere safe to go.”376
After forcing the relocation of over a million Palestinians to the south, Israel again on
December 1, 2023, issued evacuation orders for parts of the south of Gaza to which
Palestinians had just fled.377 Meanwhile, Palestinians who have tried to return to the north
have been attacked by Israeli military forces.378 On December 24, 2023, the Israeli militarybombed Al Maghazi Refugee Camp in Middle Gaza, killing more than 100 people.379 As
noted by the Office of the UN High Commissioner for Human Rights (OHCHR), thebombardment “comes after Israeli forces ordered residents from the south of Wadi Gaza tomove to Middle Gaza.”380

98.

The majority of internally displaced Palestinians in Gaza have nowhere safe to shelter, andno longer have homes, as Israel has destroyed or damaged at least 60 to 70 percent ofGaza’s residential structures.381 Over one million Palestinians in Gaza have taken shelterin overcrowded UNRWA facilities or makeshift shelters, which lack insulation from theground and from weather conditions, as well as basic infrastructure and sanitation, thus
heightening the risk of exposure to infectious diseases.382 The UN Secretary General statedBeth McKernan & Sufian Taha, Gaza civilians afraid to leave home after bombing of ‘safe routes’, THE GUARDIAN(Oct. 15, 2023), https://www.theguardian.com/world/2023/oct/14/gaza-civilians-afraid-to-leave-home-afterbombing-of-safe-routes.
375
Robin Stein, et. al., A Times Investigation Tracked Israel’s Use of One of Its Most Destructive Bombs in SouthGaza, N.Y. TIMES (Dec. 21, 2023), https://www.nytimes.com/2023/12/21/world/middleeast/israel-gaza-bombinvestigation.html.
376
Press Release, U.N. Secretary General, Statement attributable to the Spokesperson for the Secretary-General – on
the Middle East (Dec. 4, 2023), https://www.un.org/sg/en/content/sg/statement/2023-12-04/statement-attributablethe-spokesperson-for-the-secretary-general-%E2%80%93-the-middle-east%C2%A0%C2%A0%C2%A0.
377
Hostilities in the Gaza Strip and Israel | Flash Update #61, OCHA (Dec. 6, 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-61.
378
Hostilities in the Gaza Strip and Israel | Flash Update #53, OCHA (Nov. 28, 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-53.
379
Gaza’s Maghazi Refugee Camp in Ruins After Deadly Israeli Attack, AL-JAZEERA (Dec. 25, 2023),
https://www.aljazeera.com/gallery/2023/12/25/photos-gazas-al-maghazi-refugee-camp-in-ruins-after-deadly-israeliattack.
380
Statement, OHCHR, Comment by UN Human Rights Office spokesperson Seif Magango on continued
bombardment of Middle Gaza (Dec. 26, 2023), https://www.ohchr.org/en/statements/2023/12/comment-un-humanrights-office-spokesperson-seif-magango-continued-bombardment.
381
Gaza: Rights Experts Condemn AI Role in Destruction by Israeli Military, U.N. NEWS (Apr. 15, 2024),
https://news.un.org/en/story/2024/04/1148561; The Right to Adequate Housing is Under Attack in Gaza, ANERA(Apr. 18, 2024), https://www.anera.org/blog/the-right-to-adequate-housing-is-under-attack-in-gaza/.
382
The Right to Adequate Housing is Under Attack in Gaza, ANERA (Apr. 18, 2024), https://www.anera.org/blog/theright-to-adequate-housing-is-under-attack-in-gaza/; See also Situation Report #51 on the Situation in the Gaza Strip
and
the
West
Bank,
IncludingEast
Jerusalem,
UNRWA
(Dec.
13,
2023),
https://www.unrwa.org/resources/reports/unrwa-situation-report-51-situation-gaza-strip-and-west-bank-includingeast-Jerusalem.
37450

that this continuous forced displacement of Palestinians between areas under bombardment
has placed them at “a breaking point of deprivation and despair.”383
3.a.iii.3. Israel has deprived Palestinians of adequate medical services
99.

Israel has deliberately attacked the medical system in Gaza, including protected facilities,
personnel, and patients. The WHO declared in April that access to healthcare in Gaza had
become “totally inadequate,”384 and the UN Special Rapporteur on the Right to Healthdescribed the current situation as “an unrelenting war on the health system,” which has left
healthcare in Gaza “completely obliterated.” 385 The WHO has recorded 410 attacks onhealthcare, resulting in the death of an estimated 685 Palestinians and injury of
approximately 902 Palestinians in Gaza, and causing damage to 99 hospitals and medical
facilities as of mid-March 2024.386 Additionally, 104 ambulances had been destroyed ordamaged.387 Just 12 of Gaza’s 36 hospitals were still partially functioning as of May 1,
2024, but with significantly reduced capabilities. 388

100.

The few hospitals that remain have overflowed with tens of thousands of internallydisplaced Palestinians seeking safety from Israeli bombings. 389 These hospitals have been
so overwhelmed with trauma cases that suffering patients have been forced to lie on thefloors, and medical personnel have been unable to adequately treat the wounded due tomassive shortages of medical supplies. 390 These shortages in critical medical supplies havemeant that doctors have had to perform amputations (made necessary due to the risk of

383

U.N. Secretary-General, Letter dated 5 January 2024 from the Secretary-General addressed to the President of the
Security Council, S/2024/26 (Jan. 5, 2024), https://digitallibrary.un.org/record/4033002?ln=en.
384
Gaza: Systematic Dismantling of Healthcare Must End, Says WHO, U.N. NEWS (Apr. 6, 2024),
https://news.un.org/en/story/2024/04/1148316. See also INSECURITY INSIGHT, ATTACKS ON HEALTHCARE IN ISRAELAND THE OCCUPIED PALESTINIAN TERRITORIES (Feb. 13-19, 2024), https://insecurityinsight.org/wpcontent/uploads/2024/02/19.-13-19-February-2024-Attacks-on-Health-Care-in-Israel-and-the-oPt.pdf.
385
Press Release, OHCHR, Gaza: UN Expert Condemns ‘Unrelenting War’ on Health System amid Airstrikes on
Hospitals and Health Workers (Dec. 7, 2023) https://www.ohchr.org/en/press-releases/2023/12/gaza-un-expertcondemns-unrelenting-war-health-system-amid-airstrikes.
386
WHO in occupied Palestinian territory (@WHOoPt), X (Mar. 20, 2024, 6:05 AM),https://x.com/whoopt/status/1770391176085938611?s=46&t=zP8Eq6ZzsC_cl7tWFYM-jQ.
387
Id.
388
Hostilities in the Gaza Strip and Israel - reported impact | Day 208, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-208. See also Hostilities in the
Gaza Strip and Israel | Flash Update #156, OCHA (Apr. 22, 2024), https://www.ochaopt.org/content/hostilities-gazastrip-and-israel-flash-update-156; Hostilities in the Gaza Strip and Israel - Reported Impact | Day 146, OCHA (Mar.
1, 2024), https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-146.
389
UN Workers Delivering Aid to Gaza Hospital Describe ‘Bloodbath’ in Overflowing Emergency Department, U.N.
NEWS (Dec. 16, 2023), https://news.un.org/en/story/2023/12/1144877.
390
Id.

51

infection)391 and painful and invasive procedures without anesthetic or sterilized tools.392
U.S. volunteer physicians described that the medical sector in Gaza is “completely
overwhelmed, that both hospitals and staff are targets of violence, and that lack of accessto food, water, supplies is compounding the risks of patients even with treatable
injuries.”393 MSF has described Gaza’s hospitals as “death zone[s]”394 and “morgues andruins.”395
101.

The Israel military has directly targeted hospitals and medical staff in Gaza. Israeli militaryattacks have destroyed critical hospital and healthcare infrastructure, such as generatorsand solar panels,396 and mass-detained and transferred Palestinians from hospitals to
unknown locations—including “medical staff, patients, and [internally displaced
persons].”397 In a raid on Kamal Adwan Hospital in North Gaza, Israeli soldiers reportedly“desecrated the bodies of dead patients with bulldozers, let a military dog maul a man in awheelchair, and shot multiple doctors even after vetting them for terror links.” 398 In
November 2023, Israeli forces shelled Al-Nasr Hospital then subsequently gave thoseinside the hospital thirty minutes to evacuate. 399 There were no ambulances to transport

Jason Burke, ‘We are Overwhelmed’: Southern Gaza’s Exhausted Doctors Forced to Leave Children to Die, THE
GUARDIAN (Nov. 24, 2023), https://www.theguardian.com/world/2023/nov/24/we-are-overwhelmed-southern-gazasexhausted-doctors-forced-to-leave-children-to-die.
392
Hostilities in the Gaza Strip and Israel | Flash Update #32, OCHA (Nov. 7, 2023),
https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flashupdate-32.
393
U.S. Doctors Return from Gaza, Report Critical Situation for Medical Sector, SYRIAN AMERICAN MEDICALSOCIETY (Mar. 18, 2024), https://www.sams-usa.net/press_release/u-s-doctors-return-from-gaza-report-criticalsituation-for-medical-sector/.
394
WHO Leads Very High-Risk Joint Humanitarian Mission to Al-Shifa Hospital in Gaza, WHO (Nov. 18, 2023),
https://www.who.int/news/item/18-11-2023-who-leads-very-high-risk-joint-humanitarian-mission-to-al-shifahospital-in-gaza.
395
Gaza: “It Must All Stop Now,” Letter to UN Security Council, MSF (Dec. 4, 2023), https://www.msf.org/lettergaza-un-security-council.
396
Israeli Forces Target Solar Panels at Gaza’s Al-Shifa Hospital, AL-JAZEERA (Nov. 6, 2023),
https://www.aljazeera.com/news/2023/11/6/israeli-forces-target-solar-panels-at-gazas-al-shifa-hospital; Hostilities in
the
Gaza
Strip
and
Israel|Flash
Update
#66,
OCHA
(Dec.
11,
2023),
https://www.unocha.org/publications/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flashupdate-66-enhe.
397
Statement, WHO, WHO Calls for Protection of Humanitarian Space in Gaza Following Serious Incidents in HighRisk Mission to Transfer Patients, Deliver Health Supplies (Dec. 12, 2023), https://www.who.int/news/item/12-122023-who-calls-for-protection-of-humanitarian-space-in-gaza-following-serious-incidents-in-high-risk-mission-totransfer-patients--deliver-health-supplies; News Release, OHCHR, Disturbing Reports from the North of Gaza ofMass Detentions, Ill-Treatment and Enforced Disappearances of Possibly Thousands of Palestinians (Dec. 16, 2023),
https://reliefweb.int/report/occupied-palestinian-territory/un-human-rights-office-opt-disturbing-reports-north-gazamass-detentions-ill-treatment-and-enforced-disappearances-possibly-thousands-palestinians.
398
Abeer Salman & Kareem Khadder, Doctors Accuse Israeli Troops of Desecrating Bodies and Shooting Civiliansat Hospital Israel Says Was Hamas ‘Command Center’, CNN (Dec. 23, 2023, 1:00 AM),https://edition.cnn.com/2023/12/23/middleeast/kamal-adwan-hospital-gaza-israel-abuse-allegations-intlcmd/index.html.
399
Allegra Goodwin, et al., Infants Found Dead and Decomposing in Evacuated Hospital ICU in Gaza. Here’s What
We Know, CNN (Dec. 8, 2023), https://edition.cnn.com/2023/12/08/middleeast/babies-al-nasr-gaza-hospital-whatwe-know-intl/index.html.
391

52

patients, and, as a result, medical staff and health officials were forced to leave patientsbehind who could not be transported, including babies.400 The decomposing bodies of thebabies were found weeks later during the temporary ceasefire. 401
102.

During the last two weeks of March, the Israeli military conducted a siege of the Al-Shifa
Medical Complex, the site of Gaza’s biggest hospital.402 While Israel claimed that it “tookout over 200 terrorists” during its “surgical” operation,403 preliminary investigations revealthat 21 patients died in the hospital during the raid.404 Euro-Med Human Rights Monitor
reported that 13 children had been shot in and around the complex, including two boys
aged six and nine.405 In the aftermath of the siege, “[b]odies lay decomposing in thehospital’s dirt courtyard, which was laden with unexploded ordnance. Other people wereshot and left to die in its hallways, maimed and crushed by tanks outside its gates,
decomposing on side streets and in buildings.”406 The hospital, which once had 800 beds,
has been described by the WHO as now “an empty shell.”407 The WHO reported, “Nopatients remain at the facility. Most of the buildings are extensively damaged or destroyed
and the majority of equipment is unusable or reduced to ashes. . . . [T]he scale ofdevastation has left the facility completely non-functional.”408 As a result, North Gaza isleft without access to CT scanning, only one source of medical oxygen, and severely
limited laboratory capacity.409

3.a.iii.4. Israel has destroyed civilian infrastructure
103.

Israel has damaged or destroyed 70 percent of Gaza’s civilian infrastructure, according torecent estimates.410 A joint report by the World Bank and the UN estimated the cost ofdamage to critical infrastructure in Gaza to be around $18.5 billion as of January 2024,
equivalent to 95 percent of the combined gross domestic product (GDP) of the West Bank

400

Id.
Id.
402
Aya Batrawy & Omar El Qattaa, Here’s What We Found after Israel’s Raid on Al-Shifa, Gaza’s Biggest Hospital,
NPR (Apr. 6, 2024), https://www.npr.org/2024/04/06/1243045199/al-shifa-hospital-gaza-israel-raid-beforeaftermath.
403
Id.
404
Six Months of War Leave Al-Shifa Hospital in Ruins, WHO Mission Reports, WHO (Apr. 6, 2024),
https://www.who.int/news/item/06-04-2024-six-months-of-war-leave-al-shifa-hospital-in-ruins--who-missionreports.
405
In a Week, Israeli Army Executes 13 Children in and Near Al-Shifa Hospital, EURO-MED MONITOR (Mar. 27,2024),
https://euromedmonitor.org/en/article/6246/In-a-week,-Israeli-army-executes-13-children-in-and-near-AlShifa-Hospital.
406
Aya Batrawy & Omar El Qattaa, Here’s What We Found after Israel’s Raid on Al-Shifa, Gaza’s Biggest Hospital,
NPR (Apr. 6, 2024), https://www.npr.org/2024/04/06/1243045199/al-shifa-hospital-gaza-israel-raid-beforeaftermath.
407
Six Months of War Leave Al-Shifa Hospital in Ruins, WHO Mission Reports, WHO (Apr. 6, 2024),
https://www.who.int/news/item/06-04-2024-six-months-of-war-leave-al-shifa-hospital-in-ruins--who-missionreports.
408
Id.
409
Id.
410
In 4th Month of Israeli Genocide, 4 Percent of Gaza’s Population Dead, Missing, or Injured; 70 Percent of Strip’s
Infrastructure Destroyed, EURO-MED MONITOR (Jan. 5, 2024), https://euromedmonitor.org/en/article/6079.
401

53

and Gaza in 2022.411 The damage to Gaza’s housing infrastructure accounted for 72 percentof the costs.412 In some areas, entire neighborhoods have been almost completely
destroyed, including Shuja’iyya, 413 Beit Lahia,414 Beit Hanoun, and the Gaza Old City. 415
This has led experts, including the UN Special Rapporteur on the Right to Adequate
Housing, to refer to the destruction unfolding in Gaza as “domicide.”416 Domicide refers
to the systematic destruction of homes and other civilian infrastructure, carried out withthe knowledge that the territory would be uninhabitable as a result. 417
104.

In Gaza, the destruction has stretched beyond homes to the core elements of Palestinianlife. As of April 15, 2024, experts estimated that 60 to 70 percent of homes in Gaza,
including up to 84 percent of homes in North Gaza, have been fully or partiallydestroyed.418 A spatial statistics study in April 2024, found that between October 7, 2023,
and November 22, 2023, 60.8 percent of health, 68.2 percent of education, and 42.1 percent
of water facilities in Gaza were damaged.419 On April 6, 2024, the WHO deplored Israel’s“systematic dismantling of healthcare” in Gaza, and warned that access to healthcare had
become “totally inadequate.”420 By April 18, 2024, UN independent human rights experts
reported that 80 percent of Gaza’s schools had been damaged or destroyed, in addition to
227 mosques and three churches.421 Human Rights Watch further documented the

Joint World Bank, UN Report Assesses Damage to Gaza’s Infrastructure, WORLD BANK (Apr. 2, 2024),
https://www.worldbank.org/en/news/press-release/2024/04/02/joint-world-bank-un-report-assesses-damage-to-gazas-infrastructure.
412
Id.
413
Hostilities in the Gaza Strip and Israel | Flash Update #74, OCHA (Dec. 20, 2023),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-74.
414
ANADOLU ENGLISH, Drone Footage Shows Massive Destruction in Beit Lahia After Israeli Attacks on #Gaza#Israel, YOUTUBE (Dec. 27, 2023), https://www.youtube.com/watch?v=yiPB7kdYcS8.
415
Situation Maps, OCHA, Before and After: Satellite Images of Gaza Showing Damage Caused in Hostilities (Nov.
9, 2023), https://www.ochaopt.org/content/and-after-satellite-images-gaza-showing-damage-caused-hostilities.
416
Press Release, OHCHR, Gaza: Destroying Civilian Housing and Infrastructure is an International Crime, Warns
UN Expert (Nov. 8, 2023), https://www.ohchr.org/en/press-releases/2023/11/gaza-destroying-civilian-housing-andinfrastructure-international-crime.
417
Patrick Wintour, Widespread Destruction in Gaza Puts Concept of ‘Domicide’ in Focus, THE GUARDIAN (Dec. 7,2023, 10:06 AM), https://www.theguardian.com/world/2023/dec/07/widespread-destruction-in-gaza-puts-conceptof-domicide-in-focus.
418
Gaza: Rights Experts Condemn AI Role in Destruction by Israeli Military, U.N. NEWS (Apr. 15, 2024),
https://news.un.org/en/story/2024/04/1148561. See also WORLD BANK, EUROPEAN UNION & UNITED NATIONS. GAZASTRIP – INTERIM DAMAGE ASSESSMENT: SUMMARY NOTE (Mar. 29, 2024),
https://thedocs.worldbank.org/en/doc/14e309cd34e04e40b90eb19afa7b5d15-0280012024/original/Gaza-InterimDamage-Assessment-032924-Final.pdf.
419
Yara Asi et al., ‘Nowhere and No One is Safe’: Spatial Analysis of Damage to Critical Civilian Infrastructure in
the Gaza Strip During the First Phase of the Israeli Military Campaign, 7 October to 22 November 2023, 18 CONFLICTAND HEALTH (Apr. 2, 2024).
420
Gaza: Systematic Dismantling of Healthcare Must End, Says WHO, U.N. NEWS (Apr. 6, 2024),
https://news.un.org/en/story/2024/04/1148316. See also INSECURITY INSIGHT, ATTACKS ON HEALTHCARE IN ISRAELAND THE OCCUPIED PALESTINIAN TERRITORIES (Feb. 13-19, 2024), https://insecurityinsight.org/wpcontent/uploads/2024/02/19.-13-19-February-2024-Attacks-on-Health-Care-in-Israel-and-the-oPt.pdf.
421
Gaza: UN Experts Decry ‘Systemic Obliteration’ of Education System, U.N. NEWS (Apr. 18, 2024),
https://news.un.org/en/story/2024/04/1148716.
411

54

deliberate razing of orchards, greenhouses, and farmland in North Gaza by Israel’s army.422
By March 2024, Gaza’s agricultural lands had been struck by explosive weapons on at least
119 occasions, creating land contamination with clear negative and long-term impacts onfood production and security.423 Satellite images of Gaza revealed large-scale degradationof agricultural land.424 As of February 2024, more than one third of Gaza’s agriculturallands, one fifth of its greenhouses, and one third of its irrigation infrastructure had been
destroyed425—destruction that has been labeled “a deliberate act of ecocide.”426
3.a.iii.5. Israel has attacked the entire education system in Gaza
105.

Israel’s systematic attacks on the education system have nearly eliminated access to
education in Gaza. UN independent human rights experts reported in April 2024, that 80
percent of Gaza’s schools had been damaged or destroyed. 427 By early February 2024,
Israel had damaged 390 schools, 140 of which have sustained major damage or have been
completely destroyed.428 These schools previously served about 433,000 children andemployed more than 16,200 teachers. 429 Among the damaged school buildings, 65
UNRWA schools have been completely or partially destroyed. 430 At least 133 schools havebeen serving as shelters for internally displaced Palestinians. 431 In total, more than 625,000
students and nearly 23,000 teachers in Gaza have been affected by Israel’s attacks on the
education system and the related school closures, as of early March 2024.432

422

Israel: Starvation Used as Weapon of War in Gaza, HUM. RTS. WATCH (Dec. 18, 2023),
https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza.
423
INSECURITY INSIGHT, FLASH ANALYSIS REPORT: OVER FIVE MONTHS OF ATTACKS ON FOOD SECURITY IN GAZA
(Mar.
2024),
https://insecurityinsight.org/wp-content/uploads/2024/03/Flash-Analysis-Over-Five-Months-ofAttacks-on-Food-Security-in-Gaza.pdf.
424
Id.
425
Rob Vos & Soonho Kim, Long-Lasting Devastation to Livelihoods from Damage to Agricultural Lands in Gaza,IFPRI (Feb. 20, 2024), https://www.ifpri.org/blog/long-lasting-devastation-livelihoods-damage-agricultural-landsgaza.
426‘No Traces of Life’: Israel’s Ecocide in Gaza 2023-2024, FORENSIC ARCHITECTURE (Mar. 29, 2024),
https://forensic-architecture.org/investigation/ecocide-in-gaza.
427
Gaza: UN Experts Decry ‘Systemic Obliteration’ of Education System, U.N. NEWS (Apr. 18, 2024),
https://news.un.org/en/story/2024/04/1148716; UN Experts Deeply Concerned over ‘Scholasticide’ in Gaza, U.N.
NEWS (Apr. 18, 2024), https://www.ohchr.org/en/press-releases/2024/04/un-experts-deeply-concerned-overscholasticide-gaza.
428
Hostilities in the Gaza Strip and Israel | Flash Update #115, OCHA (Feb. 9, 2024),
http://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-115.
429
Id.
430
Israel Kills Dozens of Academics, Destroys Every University in the Gaza Strip, EURO-MED MONITOR (Jan. 20,2024), https://euromedmonitor.org/en/article/6108/Israel-kills-dozens-of-academics,-destroys-every-university-inthe-Gaza-Strip.
431
Id.
432
Hostilities in the Gaza Strip and Israel - Reported Impact | Day 146, OCHA (Mar. 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-146; Hostilities in the Gaza
Strip and Israel | Flash Update #115, OCHA (Feb. 9, 2024), http://www.ochaopt.org/content/hostilities-gaza-stripand-israel-flash-update-115.

55

Commissioner-General of UNRWA Phillipe Lazzarini warned that the systematic damage
to the Gazan education system would result in a “lost generation” of Gaza’s youth. 433
106.

Israel’s attacks have targeted every level of the education system. Israel has destroyed
every university in Gaza, blowing up the last of Gaza’s universities on January 17, 2024.434
Videos recorded by Israeli forces showed the destruction of Israa University with acontrolled detonation of explosives. 435 The Israeli military reportedly was using thebuilding for 70 days as a military base and an ad hoc detention facility for interrogating
Palestinian detainees. 436 More than 1,600 academics across North America havecondemned Israel for “scholasticide” by “[d]enying access to education through thewidespread and systematic destruction of educational infrastructure, along with deliberate
and indiscriminate killing of educators and students.”437

107.

UN experts reported that Israel’s attacks had killed more than 5,800 students and teachers
and injured more than 8,575 by April 18, 2024.438 Israeli forces have killed dozens ofdisplaced Palestinians sheltering in schools, including at least 15 people at the UNRWA
Al Fakhoura school and 25 people at the Al-Buraq school.439

3.a.iii.6. Israel has destroyed Gaza’s cultural heritage108.

Israel has damaged or destroyed key civilian infrastructure needed for the maintenance of
civil, educational, and cultural life in Gaza, including 195 heritage sites.440 Among these433

Wyre Davies, Gaza Destruction Risks Lost Generation of Children, Says UN Official, BBC (Jan. 19, 2024),
https://www.bbc.com/news/world-middle-east-68023080.
434
Hostilities in the Gaza Strip and Israel | Flash Update #96, OCHA (Jan. 18, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-96; Gaza: UN Experts Decry‘Systemic
Obliteration’ofEducation
System,
U.N.
NEWS
(Apr.
18,
2024),
https://news.un.org/en/story/2024/04/1148716; UN Experts Deeply Concerned over ‘Scholasticide’ in Gaza, U.N.
NEWS (Apr. 18, 2024), https://www.ohchr.org/en/press-releases/2024/04/un-experts-deeply-concerned-overscholasticide-gaza; How Israel Has Destroyed Gaza’s Schools and Universities, AL-JAZEERA (Jan. 24, 2024),
https://www.aljazeera.com/news/2024/1/24/how-israel-has-destroyed-gazas-schools-and-universities.
435
Id.
436
Hostilities in the Gaza Strip and Israel | Flash Update #96, OCHA (Jan. 18, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-96.
437
Judy Maltz, More Than 1,600 North American Professors Accuse Israel of ‘Scholasticide’, HAARETZ (Apr. 9,2024),
https://www.haaretz.com/us-news/2024-04-09/ty-article/.premium/more-than-1-600-north-americanprofessors-accuse-israel-of-scholasticide/0000018e-c1a3-dc93-adce-eff3471a0000.
438
Gaza: UN Experts Decry ‘Systemic Obliteration’ of Education System, U.N. NEWS (Apr. 18, 2024),
https://news.un.org/en/story/2024/04/1148716; UN Experts Deeply Concerned over ‘Scholasticide’ in Gaza, U.N.
NEWS (Apr. 18, 2024), https://www.ohchr.org/en/press-releases/2024/04/un-experts-deeply-concerned-overscholasticide-gaza. See also Hostilities in the Gaza Strip and Israel | Flash Update #115, OCHA (Feb. 9, 2024),
http://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-115.
439
How Israel Has Destroyed Gaza’s Schools and Universities, AL-JAZEERA (Jan. 24, 2024),
https://www.aljazeera.com/news/2024/1/24/how-israel-has-destroyed-gazas-schools-and-universities.
440
Gaza: UN Experts Decry ‘Systemic Obliteration’ of Education System, U.N. NEWS (Apr. 18, 2024),
https://news.un.org/en/story/2024/04/1148716; UN Experts Deeply Concerned over ‘Scholasticide’ in Gaza, U.N.
NEWS (Apr. 18, 2024), https://www.ohchr.org/en/press-releases/2024/04/un-experts-deeply-concerned-over-56

structures, Israel has destroyed the Palace of Justice, the center of the Palestinian court
system in Gaza;441 Gaza City’s main public library; 442 Gaza City’s Central Archivebuilding, storing a vast collection of historical documents;443 all of Gaza’s universities;444
numerous cultural centers and museums, such as the Rafah Museum, which spent thirty
years curating ancient artifacts;445 227 mosques,446 including the Omari Mosque, datingback to the fifth century; and three churches,447 including the Church of Saint Porphyrius,
the third oldest church in the world. 448 As of April 10, 2024, the UN Educational, Scientific,
and Cultural Organization (UNESCO) has verified damage to 43 heritage culturalproperties of historic, religious, or artistic interest since October 7.449 The targeting of
cultural properties impedes Palestinians’ ability to carry on their culture, historicalmemory, and identity as a group.
3.b. Evidence of Israel’s genocidal intent
109.

The genocidal intent of the Israeli government is demonstrated by its statements and its
acts. This collection of words, deeds, and “patterns of purposeful actions” 450 elevate
Israel’s conduct from individual war crimes, crimes against humanity, and human rights
violations to genocide, “the crime of crimes.” 451 The following facts—organized by
explicit expressions by Israeli officials and analysis of Israeli hostilities in Gaza,
respectively—together provide clear evidence of Israel’s genocidal intent in Gaza.

110.

Much of the existing jurisprudence on the crime of genocide is concerned with drawing
inferences of intent from circumstantial evidence, absent explicit expressions of genocidal
intent, in recognition that the latter is often unlikely and uncommon evidence. Yet in thiscase, officials at all levels of Israeli government up to and including the Prime Ministerscholasticide-gaza; Indlieb Farazi Saber, A ‘Cultural Genocide:’ Which of Gaza’s Heritage Sites Have Been
Destroyed,” AL-JAZEERA (Jan. 14, 2024), https://www.aljazeera.com/news/2024/1/14/a-cultural-genocide-which-ofgazas-heritage-sites-have-been-destroyed.
441
Leanne Abraham, et al., Israel’s Controlled Demolitions Are Razing Neighborhoods in Gaza, N.Y. TIMES (Feb. 1,2024), https://www.nytimes.com/interactive/2024/02/01/world/middleeast/Israel-gaza-war-demolish.html.
442
Sarvy Geranpayeh, Gaza City Archives Among Heritage Sites Destroyed in Israel-Hamas War, THE ART
NEWSPAPER (Dec. 22, 2023), https://www.theartnewspaper.com/2023/12/22/gaza-city-archives-among-heritagesites-destroyed-in-israel-hamas-war.
443
Id.
444
UN Experts Decry ‘Systemic Obliteration’ of Education System, U.N. NEWS (Apr. 18, 2024),
https://news.un.org/en/story/2024/04/1148716.
445
Ahmad Ibsais, Israel’s Cultural Genocide Is Destroying Gaza’s Very Memory, THE NATION (Feb. 8, 2024),
https://www.thenation.com/article/world/gaza-cultural-genocide.
446
Gaza: UN Experts Decry ‘Systemic Obliteration’ of Education System, U.N. NEWS (Apr. 18, 2024),
https://news.un.org/en/story/2024/04/1148716; UN Experts Deeply Concerned over ‘Scholasticide’ in Gaza, U.N.
NEWS (Apr. 18, 2024), https://www.ohchr.org/en/press-releases/2024/04/un-experts-deeply-concerned-overscholasticide-gaza.
447
Id.
448
Chloe Veltman, More Than 100 Gaza Heritage Sites Have Been Damaged or Destroyed by Israeli Attacks, NPR(Dec. 3, 2023), https://www.npr.org/2023/12/03/1216200754/gaza-heritage-sites-destroyed-israel.
449
Gaza Strip: Damage Assessment, UNESCO (Apr. 10, 2024), https://www.unesco.org/en/gaza/assessment.
450
Kayishema Trial Judgment at para. 93.
451
Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Trial Judgment, para. 16 (Sept. 4, 1998).

57

have made remarks that not only express blatant and unequivocal dehumanization andcruelty against Palestinians in Gaza and elsewhere, but also explicitly reflect intentions todestroy and exterminate Palestinians as such.
3.b.i. Evidence of genocidal intent: words
111.

Since October 7, 2023, officials as high as Israeli Prime Minister Benjamin Netanyahu
have issued public statements describing their intent to destroy Palestinian lives. Israeli
leaders have also repeatedly invoked dehumanizing rhetoric and imagery of Palestinians.

112.

Many experts have sounded the alarm about the danger of the rhetoric used by Israel’s
officials. The UNRWA Commissioner-General noted that the severity of the situation in
Gaza is “compounded by dehumanizing language.” 452 The Committee on the Eliminationof Racial Discrimination warned of “racist hate speech and dehumanization directed atPalestinians,”453 and a group of 37 Special Rapporteurs and other UN experts described theIsraeli rhetoric as “discernibly genocidal and dehumanizing.”454

3.b.i.1. Plans to destroy
113.

The highest officials in the Israeli government, including the heads of State, government,
and military, as well as lower-level government and military officials, have publicly andrepeatedly expressed intentions to destroy Palestinians and Palestinian society in Gaza;
collectively punish Palestinians and cause them to suffer militarily and through theblockading of basic necessities; and push the Palestinian population out of Gaza. In doing
so, they have intentionally blurred the lines between civilians and combatants, while
encouraging the Israeli military to cause massive death and destruction. The government’s
highest official, Prime Minister Benjamin Netanyahu, has explicitly evoked Biblicalcommandments to wipe out an entire nation, including men, women, and children, in
Israel’s war efforts, as described below. Other officials have expressed pleasure and prideat the devastation in Gaza and the hope of enacting another Nakba, the violent
dispossession of 800,000 Palestinians from their homes between 1947 and 1949. The
following is a non-exhaustive sampling of these statements. 455

452

Official Statement, UNRWA, The Gaza Strip: 100 Days of Death, Destruction and Displacement (Jan. 13, 2024),
https://www.unrwa.org/newsroom/official-statements/gaza-strip-100-days-death-destruction-and-displacement.
453
Committee on the Elimination of Racial Discrimination [hereinafter CERD], Statement 5 (2023), Israel and theState of Palestine (Oct. 27, 2023),
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/DownloadDraft.aspx?key=6xB5VA8bX7dpmO6n1lnw
Y2Alk9Jl7Y3M2BOW7bF4xdaLCnCEEGmf/BeCqA52axvhoqUA6j4NbmKQI7erG/ykDg==.
454
Press Release, OHCHR, Gaza: UN experts call on international community to prevent genocide against thePalestinian people (Nov. 16, 2023), https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-callinternational-community-prevent-genocide-against.
455
See, e.g., 85 Israeli Genocidal Intent Quotes, ZIONISM OBSERVER, https://zionism.observer/quotes/genocidal-intent(Last visited May 1, 2024).

58

114.

In a televised address on the night of October 7, Prime Minister Netanyahu ordered the 2.2
million Palestinians in Gaza to “get out now. We will be everywhere and with all our
might.”456

115.

In an address publicly broadcasted on October 28, 2023, and posted on the government’s
official YouTube account, Netanyahu stated: “You must remember what Amalek has done
to you, says our Holy Bible. And we do remember.” 457 The Prime Minister’s Office again
referred to this phrase in a Post on X on November 3, 2023.458 The relevant Biblical passage
reads, “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but
kill alike men and women, infants and sucklings, oxen and sheep, camels and asses.” 459

116.

Upon initiating a total blockade on Gaza, Israel’s Minister of Defense Yoav Gallant stated,“I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food,no fuel, everything is closed. . . . We are fighting human animals and we are acting
accordingly.”460 The Minister of Defense also stated that he had “released all the
restraints,”461 and that “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. It will take weeks or even months,
we will reach all places.”462

117.

Israeli President Isaac Herzog underscored Israel’s intent to target all Palestinians in Gaza,
without distinguishing between militants and civilians, by declaring, “[i]t’s an entire nationout there that is responsible. It’s not true this rhetoric about civilians not being aware, notinvolved. It’s absolutely not true.”463 Minister of National Security Itamar Ben-Gvir
likewise declared, “[t]o be clear, when they say that Hamas needs to be eliminated, it also

Times of Israel Staff, Barkat: Promising Merciless War on Hamas, Netanyahu Says Israel Will ‘Avenge this BlackDay’, TIMES OF ISR. (Oct. 6, 2023), https://www.timesofisrael.com/promising-merciless-war-on-hamas-netanyahusays-israel-will-avenge-this-black-day/.
457
IsraeliPM, Address by the Prime Minister of Israel, YOUTUBE (Oct. 28, 2023),
https://www.youtube.com/watch?v=lIPkoDk6isc. Translation in Israel-Hamas war: ‘We Will Fight and We Will
Win’, says Benjamin Netanyahu, SKY NEWS (Oct. 28, 2023), https://news.sky.com/video/israel-hamas-war-we-willfight-and-we-will-win-says-benjamin-netanyahu-12995212.
458
Prime Minister’s Office in Hebrew (@IsraeliPM_heb), X (Nov. 3, 2023, 11:43 AM),https://x.com/IsraeliPM_heb/status/1720406463972004198.
459
Sefaria, I Samuel 15:1-34, JPS, 1985, https://www.sefaria.org/I_Samuel.15.1-34?lang=bi. The message to kill allmen, women, and infants is consistent across versions.
460
Emanuel Fabian, Defense Minister Announces ‘Complete Siege’ of Gaza: No Power, Food or Fuel, TIMES OF ISR.
(Oct. 9, 2023, 12:26 PM), https://www.timesofisrael.com/liveblog_entry/defense-minister-announces-completesiege-of-gaza-no-power-food-or-fuel/. Emphasis added.
461
Kipa News, Filmography: Ariel Harmoni, Ministry of Defense, YOUTUBE (Oct. 10, 2023)
https://www.youtube.com/watch?v=l9wx7e4u-xM. Trans. in Emanuel Fabian, Gallant: Israel Moving to Full Offense,
Gaza Will Never Return to What it Was, TIMES OF ISR. (Oct. 10, 2023, 7:33 PM)
https://www.timesofisrael.com/liveblog_entry/gallant-israel-moving-to-full-offense-gaza-will-never-return-to-whatit-was/.
462
Kipa News, Filmography: Ariel Harmoni, Ministry of Defense, YOUTUBE (Oct. 10, 2023),
https://www.youtube.com/watch?v=l9wx7e4u-xM. Trans. in Israeli Defense Minister Warns Hamas ‘Will Regret’
Deadly Attacks, BLOOMBERG (Oct. 10, 2023), https://www.youtube.com/watch?v=vtjHcnNB0E8.
463
Paul Blumenthal, Israeli President Says There Are No Innocent Civilians in Gaza, HUFFINGTON POST (Oct. 13,
2023, 11:43 AM), https://www.huffpost.com/entry/israel-gaza-isaac-herzog_n_65295ee8e4b03ea0c004e2a8.
45659means those who sing, those who support and those who distribute candy, all of these areterrorists.”464
118.

Speaking at the “Return to Gaza” Conference, Minister of National Security Ben-Gvir
reportedly said that the “only humane solution for Gaza is the mass deportation of its
inhabitants.”465

119.

As Israeli Energy Minister Israel Katz cut off all electricity to the Gaza Strip, he statedIsrael’s clear intention against the Palestinian people: “What was will not be.”466

120.

Major General Ghassan Alian, head of the Israeli military’s Coordinator of Government
Activities in the Territories (COGAT), responsible for administering the siege on Gaza, 467
explicitly declared Israel’s intention to bring about physical destruction to Palestinians inGaza, stating: “Human animals must be treated as such. There will be no electricity and nowater [in Gaza], there will only be destruction. You wanted hell, you will get hell.” 468

121.

Israel’s Minister of Economy Bezalel Smotrich stated, “Israel has a very clear message to
our enemies. We are saying to them, look what’s happening in Gaza—you are going to get
the same treatment if you attack us. We are going to wipe you off the face of the earth.” 469
Smotrich also publicly invoked the commandment of Amalek earlier expressed by
Netanyahu in calling for the “total annihilation” of Gaza as recently as April 29, 2024,
stating at an event: “There are no half measures. [The Gazan cities of] Rafah, Deir al-Balah,
Nuseirat – total annihilation. 'You will blot out the remembrance of Amalek from underheaven' – there's no place under heaven.”470

122.

Israeli Defense Force Spokesperson Rear Admiral Daniel Hagari stated, “[w]hile balancing
accuracy with the scope of damage, right now we’re focused on what causes maximum464

Ikram Kouachi, Anyone Who Supports Hamas Should Be Eliminated: Israeli Minister, ANADOLU AJANSI (Nov.
13,2023),
https://www.aa.com.tr/en/middle-east/anyone-who-supports-hamas-should-be-eliminated-israeliminister/3051463.
465
Itay
Epshtain(@EpshtainItay),
X
(Jan.
28,
2024,
10:45
AM),
https://twitter.com/EpshtainItay/status/1751677871318311127.
466
Israel Katz (@Israel_katz), X (Oct. 11, 2023, 7:29 AM), https://x.com/Israel_katz/status/1712083122227909116.
467
See
COORDINATIONOFGOVERNMENTACTIVITIESINTHETERRITORIES,
GOV.IL,https://www.gov.il/en/departments/coordination-of-government-activities-in-the-territories/govil-landing-page (lastvisited May 1, 2024).
468
Gianluca Pacchiani, COGAT Chief Addresses Gazans: “You Wanted Hell, You Will Get Hell”, TIMES OF ISR. (Oct.
10, 2023, 4:01 PM), https://www.timesofisrael.com/liveblog_entry/cogat-chief-addresses-gazans-you-wanted-hellyou-will-get-hell/.
469
Times of Israel Staff, Barkat: We’ll Wipe Iran’s Leaders Off the Face of the Earth if They Expand Conflict, TIMESOF ISR. (Oct. 23, 2023, 6:43 PM), https://www.timesofisrael.com/barkat-well-wipe-irans-leaders-off-the-face-of-theearth-if-they-expand-conflict/.
470
Noa Shpigel, Israel's Far-right Minister Smotrich Calls for 'No Half Measures' in the 'Total Annihilation' of Gaza,
HAARETZ (Apr. 30, 2024), https://www.haaretz.com/israel-news/2024-04-30/ty-article/.premium/smotrich-calls-forno-half-measures-in-the-total-annihilation-of-gaza/0000018f-2f4c-d9c3-abcf-7f7d25460000.

60

damage.”471 He also boasted about Israel’s intent to destroy Gaza, stating, “Gaza will
eventually turn into a city of tents. There will be no buildings.” 472
123.

Israeli Energy Minister Katz also stated Israel’s intent to eliminate Palestinians: “Allcivilian population in [G]aza is ordered to leave immediately. We will win. They will notreceive a drop of water or a single battery until they leave the world.” 473

124.

Israel’s Social Equality and Women’s Advancement Minister May Golan said in the
Knesset, “I am proud of the ruins of Gaza, and that every baby, even 80 years from now,
will tell their grandchildren what the Jews did.”474

125.

Israeli Heritage Minister Amichai Eliyahu asserted on public radio, “[w]e must find ways
for Gazans that are more painful than death,” and called for encouraging Palestinians toleave Gaza.475 He also stated that Israel dropping a nuclear bomb on Gaza is “an option,” 476
and stated:
The north of the Gaza Strip, more beautiful than ever. Everything is blown up
and flattened, simply a pleasure for the eyes . . . We must talk about the day
after. In my mind, we will hand over lots to all those who fought for Gaza over
the years and to those evicted from [an illegal Israeli settlement]. 477

126.

Avi Dichter, Minister of Agriculture and former head of the Israeli Security Agency, Shin
Bet, stated, “[w]e are now actually rolling out the Gaza Nakba.” 478

127.

The intent to annex parts of Gaza is also clear in statements by Israeli Minister Gideon
Sa’ar, a member of the newly created “war cabinet.” Sa’ar has said that Gaza “must be
smaller at the end of the war.”479

Bethan McKernan & Quique Kierszenbaum, “We’re Focused on Maximum Damage”: Ground Offensive into Gaza
Seems Imminent, THE GUARDIAN (Oct. 10, 2023), https://www.theguardian.com/world/2023/oct/10/right-now-it-isone-day-at-a-time-life-on-israels-frontline-with-gaza.
472
Omar Shakir, Yasmine Ahmed & Akshaya Kumar, We Are Seeing Urgent Signs of More Mutual Mass Atrocities
to Come in Israel and Gaza, HUM. RTS. WATCH (Oct. 20, 2023),
https://www.hrw.org/news/2023/10/20/we-are-seeing-urgent-signs-more-mutual-mass-atrocities-come-israel-andgaza.
473
IsraelKatz(@Israel_katz),
X
(Oct.
13,
2023,
5:01
PM),
https://twitter.com/Israel_katz/status/1712876230762967222.
474
May Golan (@GolanMay), X (Feb. 19, 2024, 2:25 PM), https://x.com/GolanMay/status/1759675501424042329.
475
Ahmed Asmar, Another Israeli Minister Calls for Encouraging Palestinians to Leave Gaza, ANADOLU AJANSI(Jan. 5, 2024), https://www.aa.com.tr/en/middle-east/another-israeli-minister-calls-for-encouraging-palestinians-toleave-gaza/3101423.
476
Id.
477
Amichai Eliyahu, FACEBOOK (Nov. 1, 2023), https://www.facebook.com/eliyau.a/videos/148918588283326/.
478
Michael Hauster Tov, ‘We're Rolling Out Nakba 2023’ Israeli Minister Says on Northern Gaza Strip Evacuation,
HAARETZ (Nov. 12, 2023), https://www.haaretz.com/israel-news/2023-11-12/ty-article/israeli-security-cabinetmember-calls-north-gaza-evacuation-nakba-2023/0000018b-c2be-dea2-a9bf-d2be7b670000.
479
Patrick Wintour, Ruth Michaelson & Bethan McKernan, Blinken Returning to Israel to Try to Limit Death Tollfrom an Invasion of Gaza, THE GUARDIAN (Oct. 15, 2023), https://www.theguardian.com/world/2023/oct/15/egyptmoves-troops-to-gaza-border-amid-fears-of-expulsion-of-palestinians.
471

61

128.

Galit Distel Atbaryan, former Minister of Public Diplomacy and current Knesset Member
for the Likud Party (part of the governing coalition), declared:
Erase all of Gaza from the face of the earth. That the Gazan monsters will
fly to the southern fence and try to enter Egyptian territory or they will die
and their death will be evil. Gaza should be erased. . . . A vengeful and cruel
IDF is needed here. Anything less is immoral. Just unethical. 480

129.

Deputy Knesset Speaker and member of Likud’s governing coalition Nissim Vaturi stated,“[n]ow we all have one common goal: erasing the Gaza Strip from the face of the earth.”481
Knesset Member, Ariel Kallner said, “[r]ight now, one goal: Nakba. A Nakba that willovershadow the Nakba of 1948. Nakba in Gaza and Nakba to anyone who dares to join.” 482
Another Knesset Member, Hanoch Milbitsky, told Knesset Member Ayman Odeh, who is
an Arab Palestinian citizen of Israel, “You will die, your children will die, yourgrandchildren will die, there won’t be a Palestinian State, there will never be.”483

3.b.i.2. Dehumanization
130.

Alongside statements that explicitly express intent and outline plans to cause mass
destruction of Palestinians and Palestinian society in Gaza, officials from the highest to
lowest levels in government have used dehumanizing, derogatory, and discriminatory
rhetoric against Palestinians, often employing dog whistles that harken back toeliminationist rhetoric in other colonialist contexts. These are relevant to an analysis ofintent. The court in Kayishema and Ruzindana, for example, considered derogatory
language in its assessment of intent: utterances by the Defendant that referred to Tutsis as
Inyenzi (“cockroach”), “dirt . . . to be removed,” and “Tutsi dogs,” for example, constituted
evidence of specific intent to commit genocide.484

131.

Israeli Prime Minister Netanyahu has repeatedly used dehumanizing rhetoric against
Palestinians, including language that casts Palestinians as universally evil. In a letter toIsraeli soldiers subsequently published on X (formerly Twitter), the Prime Minister stated:“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 evilthat threatens us and the entire world.” 485 The Prime Minister has deployed similar

480

Galit
DistelAtbaryan(@GalitDistel),
X
(Nov.
1,
2023,
8:13
AM),
https://x.com/galitdistel/status/1719689095230730656.
481
Antonio Pita, ‘Wipe Gaza Off the Face of the Earth’: The Statements Made by Israeli Politicians on Which South
Africa Supports its Genocide Case, EL PAÍS (Jan. 11, 2024, 22:16 PM), https://english.elpais.com/international/202401-11/wipe-gaza-off-the-face-of-the-earth-the-statements-made-by-israeli-politicians-on-which-south-africasupports-its-genocide-case.html.
482
Ariel
Kallner(@ArielKallner),
X
(Oct.
7,
2023,
9:29
PM),
https://twitter.com/ArielKallner/status/1710769363119141268.
483
Quds
News
Network(@QudsNen),
X
(Feb.
21,
2024,
11:07
AM),
https://twitter.com/QudsNen/status/1760380651444805715.
484
Kayishema Trial Judgment at para. 538.
485
Prime Minister’s Office in Hebrew (@IsraeliPM_heb), X (Nov. 3, 2023, 11:44 AM),https://x.com/IsraeliPM_heb/status/1720406469055500583.

62dehumanizing sentiment on multiple occasions, saying, for example: “This will be a victoryof good over evil, of light over darkness, of life over death. In this war we will standsteadfast, more united than ever, certain in the justice of our cause. This is the mission of
our lives. This is also the mission of my life.” 486 He also called Israel’s attacks on Gaza a“struggle between the children of light and the children of darkness, between humanity andthe law of the jungle.”487 In his “Christmas Message,” Prime Minister Netanyahu asserted
that “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.”488
132.

Numerous Israeli officials, by referring to Palestinians in Gaza as “human animals” (seeSection 3.b.i.1), have engaged in an age-old and textbook tactic of dehumanization.489

3.b.ii. Evidence of intent: acts
133.

It is in the context of the above statements that Israel has committed all the acts delineatedin Section 3.a. These acts do not simply depict a harrowing story of months of suffering.
Viewed in their entirety, they are probative of genocidal intent. Specifically, Israel has
caused broad physical destruction and severe bodily injury to Palestinians in Gaza;
indiscriminately, systematically, and consistently harmed them, including civilians
attempting to seek aid; destroyed Palestinians’ property, including cultural property; used
weapons intended to unleash extreme suffering and devastation on Gaza; and created mass
graves of and desecrated Palestinians’ bodies.

3.b.ii.1. Israel has physically targeted Palestinians and caused severe bodily injury to an
unprecedented number of Palestinians in Gaza
134.

Many international tribunals have concluded that the broad scale of destruction of membersof the group may lead to an inference of genocidal intent (Section 1.b.ii). The ICTR in
Muhimana, for example, held that while there is “no numerical threshold of victims
necessary” for a finding of genocide, “the relative proportionate scale of the actual orattempted destruction of a group, by any act listed in Article II of the Statute, is strong
evidence of the intent to destroy a group, in whole or in part.”490

486

Press Release, Prime Minister Benjamin Netanyahu, Statement by PM Netanyahu (Oct. 28, 2023),
https://www.gov.il/en/departments/news/statement-by-pm-netanyahu-28-oct-2023.
487
Press Release, Israel Ministry of Foreign Affairs, Excerpt from PM Netanyahu's remarks at the opening of theWinter Assembly of the 25th Knesset’s Second Session (Oct. 16, 2023), https://www.gov.il/en/pages/excerpt-frompm-netanyahu-s-remarks-at-the-opening-of-the-knesset-s-winter-assembly-16-oct-2023.
488
Press Release, Israel Ministry of Foreign Affairs, Christmas Message from PM Netanyahu (Dec. 24, 2023),
https://www.gov.il/en/departments/news/christmas-message-from-pm-netanyahu-24-dec-2023.
489
These most recent dehumanizing statements are not unique but rather follow historic patterns of dehumanizationand erasure of Palestinians in the statements of Israeli leaders. See, e.g., Melissa F. Weiner, Palestinian Erasure andDehumanization in Introductory Sociology Texts, Symposium: Radicalization and Continued Oppression of Palestine,
49:6 CRITICAL SOCIOLOGY 991, 991-1008 (Sept. 2023).
490
Muhimana Trial Judgment at para. 498.

63

135.

Israel has killed or injured more than 5 percent of the population of Gaza since October 7,2023 (see Section 3.a).491 As discussed in detail in Sections 3.a.i and 3.a.ii, Israel has
systematically directed violence against Palestinians. Israel killed more children in the first
four months of its assault than in all of the world’s conflicts in the past four years
combined.492 In November 2023, UN Secretary-General Antonio Guterres underscoredthat the death toll in Gaza is “unparalleled and unprecedented.” 493 The death toll has morethan doubled since.494 Recognizing the extent of bodily injury, the number of victims, andthe scale of destruction as a result of Israel’s violence, over thirty UN experts have called
for an arms embargo on Israel.495

3.b.ii.2 Israel has systemically, consistently, and indiscriminately targeted and killed Palestinians
in Gaza136.

The systematic and consistently applied nature of harms against a group is relevant todetermining genocidal intent, according to the ICJ’s judgment in Bosnia and Herzegovina
v. Serbia and Montenegro.496

137.

There are many examples of Israeli forces indiscriminately targeting Palestinians in Gaza,
as described in Section 3.a. Notably, Israeli military attacks have repeatedly targeted
Palestinian civilians attempting to receive humanitarian aid. Between mid-January andFebruary 2024, there have been at least 14 reported incidents of “shooting, shelling andtargeting groups gathered to receive urgently needed supplies from trucks or airdrops
between mid-January and the end of February 2024.”497 On the morning of February 29,
2024, in what has been referred to as the Flour Massacre, Israeli forces killed 115
Palestinians and injured 760 in Gaza City as they sought out food aid.498 Israel’s attack on
Palestinians desperately trying to find food came as at least 1.1 million Palestinians in Gaza

491

Hostilities in the Gaza Strip and Israel | Flash Update #153, OCHA (Apr. 15, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-153;
UnitedNations
Geneva(@UNGeneva), X (Feb. 16, 2024, 8:01 PM), https://x.com/UNGeneva/status/1758657840925872443.
492
Clarissa-Jan Lim, More Children Killed in Gaza in Four Months than in Four Years of War Globally: Report,
MSNBC (Mar. 14, 2024), https://www.msnbc.com/top-stories/latest/death-toll-children-gaza-israel-rcna143269;
Press Release, UNICEF, Children Disproportionately Wearing the Scars of the War in Gaza - Geneva Palais Briefing
Note (Apr. 16, 2024), https://www.unicef.org/press-releases/children-disproportionately-wearing-scars-war-gazageneva-palais-briefing-note.
493
Gaza: ‘Thousands of Children Killed’ Within a Few Weeks, Says UN’s Guterres, U.N. NEWS (Nov. 20, 2023),
https://news.un.org/en/story/2023/11/1143772.
494
See, e.g Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160.
495
Press Release, OHCHR, Arms Exports to Israel Must Stop Immediately: UN Experts (Feb. 23, 2024),
https://www.ohchr.org/en/press-releases/2024/02/arms-exports-israel-must-stop-immediately-un-experts.
496
Bosn. & Herz. v. Serb. & Montenegro at para. 370.
497
Press Release, OHCHR, UN Experts Condemn ‘Flour Massacre’, Urge Israel to End Campaign of Starvation in
Gaza (Mar. 5, 2024), https://www.ohchr.org/en/press-releases/2024/03/un-experts-condemn-flour-massacre-urgeisrael-end-campaign-starvation-gaza.
498
UN Chief Appalled by ‘Tragic Human Toll’ of Gaza War, U.N. NEWS (Feb. 29, 2024),
https://news.un.org/en/story/2024/02/1147082; In Press Conference, Euro-Med Confirms Israel's Full Involvement inGaza Flour Massacre, EURO-MED MONITOR (Mar. 3, 2024), https://euromedmonitor.org/en/article/6200.

64experienced “catastrophic hunger,” 499 and one in six children under the age of two innorthern Gaza suffered from acute malnutrition. 500 As noted above, Israel’s blockade ofhumanitarian aid, including food, has caused widespread, catastrophic hunger andmalnutrition. At least 28 children have reportedly died of starvation, and others remain in
critical condition due to dehydration and starvation as of April 2024.501
138.

Israeli leadership has not only failed to condemn or investigate the deaths; it also
demonized the victims and spun the event to justify further restrictions on aid. In responseto the February 29, 2024, massacre, Israeli Minister of National Security Itamar Ben-Gvirstated in a post on X:
Total support must be given to our heroic fighters operating in Gaza, who
acted excellently against a Gazan mob that tried to harm them. Today it wasproven that the transfer of humanitarian aid to Gaza is not only madness
while our abductees are being held in the Strip under substandard
conditions, but also endangers the IDF soldiers. This is another clear reason
why we must stop transferring this aid, which is in fact aid to harm the IDF
soldiers and oxygen to Hamas. 502

139.

On March 3, 2024, Israeli forces once again targeted Palestinians in Gaza waiting for aid,
killing and wounding dozens of people in Gaza City.503 Save the Children, in a statement
addressing the massacre and targeting of Palestinians civilians while they wait for aid,
stated: “As children in Gaza die due to a lack of food, their parents are being killed trying
to get it for them.”504

3.b.ii.3. Israel has systematically and extensively targeted Palestinians’ property in Gaza140.

The ICTR in Kayishema and Ruzindana determined that genocidal intent can be inferredfrom “the physical targeting of the group or their property.”505 As noted in Section 3.a.iii,

Elizabeth Bryant, Hunger in Gaza: Famine Findings a ‘Dark Mark’ on the World, Says WFP PalestineCountryDdirector, WFP (Mar. 18, 2024), https://www.wfp.org/stories/hunger-gaza-famine-findings-dark-markworld-says-wfp-palestine-country-director.
See
also
Emergency:
Stateof
Palestine,
WFP,
https://www.wfp.org/emergencies/palestine-emergency (last visited May 1, 2024).
500
Meeting Coverage, U.N. Security Council, Famine Imminent in Gaza, Humanitarian Officials Tell Security
Council, Calling for Immediate Ceasefire, U.N. Meeting Coverage SC/15604 (Feb. 27, 2024).
501
Gaza: Israel’s Imposed Starvation Deadly for Children, HUM. RTS. WATCH (Apr. 9, 2024),
https://www.hrw.org/news/2024/04/09/gaza-israels-imposed-starvation-deadly-children; See also Six Children Die,
AL-JAZEERA (Feb 28, 2024), https://www.aljazeera.com/news/2024/2/28/children-die-of-malnutrition-in-gazahospitals-health-ministry.
502
Itamar
Ben-Gvir(@itamarbengvir),
X
(Feb.
29,
2024,
8:37
AM),
https://x.com/itamarbengvir/status/1763196768458604583.
503
Tamila Varshalomidze, Usaid Siddiqui & Maziar Motamedi, Israel’s War on Gaza Live: Israel Again Attacks AidSeekers in Gaza City, AL-JAZEERA (Mar. 3, 2024), https://www.aljazeera.com/news/liveblog/2024/3/3/israels-waron-gaza-live-every-minute-counts-as-hunger-kills-in-gaza.
504
While Children Die from Lack of Food, Their Parents are Killed Trying to Get it for them, SAVE THE CHILDREN(Feb. 29, 2024), https://www.savethechildren.net/news/while-children-die-lack-food-their-parents-are-killed-tryingget-it-them-save-children.
505
Kayishema Trial Judgment at para. 93.
499

65

Israel has destroyed at least 60 to 70 percent of Palestinian homes in Gaza, including up to84 percent of North Gaza homes.506 Israel has also destroyed hundreds of buildings,
including entire residential neighborhoods, mosques, university campuses, UN schools,
and a resort.507 Social media posts of Israeli soldiers in Gaza show Israeli forces destroying
Palestinian civilians’ property, vandalizing shops, and bulldozing civilian neighborhoods,
while celebrating and using derogatory and racist language towards Palestinians. 508
141.

The ICJ held that systematic attacks on cultural and religious property may also be
probative of intent.509 Israel has damaged or destroyed key Palestinian cultural heritage andreligious sites as it has destroyed other civil infrastructure and killed, injured, and displaced
Palestinians en masse (see Section 3.a.iii.6).

3.b.ii.3. Israel has used weapons intended to cause severe damage and widespread death142.

The types of weapons used in an offensive may also indicate genocidal intent, according
to the ICTR in Kayishema and Ruzindana.510

143.

The weapons used by Israel indicate an intent to systematically destroy Palestinians andtheir property. Nearly 50 percent of the bombs Israel has dropped on Gaza have been
unguided “dumb bombs,” which are “less precise and can pose a greater threat to civilians,
especially in such a densely populated area like Gaza.”511 Israel has used white phosphorus,
which burns at more than 800 degrees Celsius and causes severe and deep burns to theflesh, in the densely populated Gaza Strip.512 Israel has also dropped hundreds of 2,000-

506

Gaza: Rights Experts Condemn AI Role in Destruction by Israeli Military, U.N. NEWS (Apr. 15, 2024),
https://news.un.org/en/story/2024/04/1148561. See also Press Release, OHCHR, Over One Hundred Days into theWar, Israel Destroying Gaza’s Food System and Weaponizing Food, Say UN Human Rights Experts (Jan. 16, 2024),
https://www.ohchr.org/en/press-releases/2024/01/over-one-hundred-days-war-israel-destroying-gazas-food-systemand.
507
Leanne Abraham, Israel’s Controlled Demolitions Are Razing Neighborhoods in Gaza, N.Y. TIMES (Feb. 1, 2024),
https://www.nytimes.com/interactive/2024/02/01/world/middleeast/Israel-gaza-war-demolish.html.
508
See e.g., Aric Toler, et. al., What Israeli Soldiers’ Videos Reveal: Cheering Destruction and Mocking Gazans, N.Y.
TIMES (Feb. 6, 2024), https://www.nytimes.com/2024/02/06/world/middleeast/israel-idf-soldiers-war-social-mediavideo.html; Ivana Kottasová & Celine Alkhaldi, Videos Show Israeli Soldiers in Gaza Burning Food, Vandalizing a
Shop and Ransacking Private Homes, CNN (Dec. 15, 2023), https://www.cnn.com/2023/12/15/middleeast/israelisoldiers-burningfood-gaza-intl/index.html; Israeli Soldier Destroys Civilian’s Property in Mockery of Gazan
Hardships, MIDDLE EAST MONITOR (Jan. 27, 2024), https://www.middleeastmonitor.com/20240127-israeli-soldierdestroys-civilians-property-in-mockery-of-gazan-hardships/.
509
Bosn. & Herz. v. Serb. & Montenegro at para. 344, citing Krstić Trial Judgment at para. 580.
510
Kayishema Trial Judgment at para. 93.
511
Natasha Bertrand & Katie Bo Lillis, Exclusive: Nearly Half of the Israeli Munitions Dropped on Gaza are
Imprecise“Dumb
Bombs,”USIntelligence
Assessment
Finds,
CNN(Dec.
14, 2023),
https://www.cnn.com/2023/12/13/politics/intelligence-assessment-dumb-bombs-israel-gaza/index.html.
512
Questions and Answers on Israel’s Use of White Phosphorus in Gaza and Lebanon, HUM. RTS. WATCH (Oct. 12,2023),
https://www.hrw.org/news/2023/10/12/questions-and-answers-israels-use-white-phosphorus-gaza-andlebanon.

66

pound bombs.513 These weapons are capable of killing and injuring people more than 1,000
feet away from the location of impact. 514
3.b.ii.4. Israel has desecrated Palestinian bodies and created mass graves in Gaza
144.

Just as in Krstić, wherein the Trial Chamber held that the creation of mass graves, bodily
mutilation, and the exhumation and relocation of mass graves was indicative of genocidal
intent,515 Israeli forces have desecrated at least sixteen cemeteries in Gaza since October 7,
removing some corpses and leaving others exposed to the elements.516 The Israeli militaryhas, in cases like the Bani Suheila cemetery, bulldozed and used the locations of cemeteries
as military staging grounds. 517 Investigations have found that Israeli forces “targeted the
majority of the cemeteries in the Gaza Strip” including Al-Fallujah; Ali bin Marwan;
Sheikh Radwan; Al-Shuhada; Sheikh Shaaban; St. Porphyrius Church, and Al-Shuhada
Cemeteries.518

145.

In April 2024, multiple mass graves were uncovered in Gaza at Nasser Hospital in Khan
Younis and at Al-Shifa Hospital in Gaza City.519 Hundreds of bodies of older people,
women, and wounded Palestinians were found in these mass graves, some with their hands
tied and stripped of their clothes.520

3.b.iii Relevant political context
146.

Israeli officials’ dehumanizing and genocidal rhetoric, as well as the systematic violence
carried out against Palestinians in Gaza by Israel, have coincided with government rhetoric,
legislation, and practice that reinforces Jewish supremacy and forecloses the possibility ofa two-state solution. These facts lend further support to the evidence of genocidal intent
detailed above. As in Karadžić and Mladić, where the ICTY found that the political project

Tamara Qiblawi et. al., ‘Not Seen Since Vietnam’: Israel Dropped Hundreds of 2,000-Pound Bombs on Gaza,
Analysis Shows, CNN (Dec. 22, 2023), https://www.cnn.com/gaza-israel-big-bombs/index.html.
514
Id.
515
Krstić Trial Judgment at para. 596.
516
Jeremy Diamond et. al. At Least 16 Cemeteries in Gaza Have Been Desecrated by Israeli Forces, Satellite Imagery
and Videos Reveal, CNN (Jan. 20, 2024), https://www.cnn.com/2024/01/20/middleeast/israel-gaza-cemeteriesdesecrated-investigation-intl-cmd/index.html.
517
Id.
518
Id.
519
Mass Graves in Gaza Show Victims’ Hands Were Tied, Says UN Rights Office, U.N. NEWS (Apr. 23, 2024),
https://news.un.org/en/story/2024/04/1148876. See also Liam Stack, Hiba Yazbek & Nick Cumming-Bruce, U.N.
Calls for Inquiry into Mass Graves at 2 Gaza Hospitals, N.Y. TIMES (Apr. 23, 2024),
https://www.nytimes.com/2024/04/23/world/middleeast/gaza-mass-grave.html; Ruth Michaelson, UN Rights Chief‘Horrified’ by Reports of Mass Graves at Two Gaza Hospitals, THE GUARDIAN (Apr. 23, 2024),
https://www.theguardian.com/world/2024/apr/23/un-rights-chief-horrified-by-reports-of-mass-graves-at-two-gazahospitals.
520
Id. See also Liam Stack, Hiba Yazbek & Nick Cumming-Bruce, U.N. Calls for Inquiry into Mass Graves at 2 Gaza
Hospitals, N.Y. TIMES (Apr. 23, 2024), https://www.nytimes.com/2024/04/23/world/middleeast/gaza-massgrave.html; Ruth Michaelson, UN Rights Chief ‘Horrified’ by Reports of Mass Graves at Two Gaza Hospitals, THE
GUARDIAN (Apr. 23, 2024), https://www.theguardian.com/world/2024/apr/23/un-rights-chief-horrified-by-reports-ofmass-graves-at-two-gaza-hospitals.
513

67

of the Serb Democratic Party, in imagining an “ethnically homogeneous State” in aterritory of multiple populations, “contemplates the destruction of the non-Serbiangroups,”521 the explicit Israeli policy of a Jewish State covering the entirety of Israeli andPalestinian territory must be considered in inferring genocidal intent. The history of Israel’s
objective to expand the State of Israel, while simultaneously ensuring that Israeli Jews
maintain numerical, political, and cultural supremacy, is long, well-documented, andconsistent. This report does not expound on the extensive historical examples of thispolitical project, but the following are recent reiterations. In 2019, Israeli Prime Minister
Benjamin Netanyahu stated that Israel is “not a state of all its citizens,” but rather the“nation state only of the Jewish people.” 522 This rhetoric reflects the 2018 Nation-State of
the Jewish People Law: a “basic law,” or constitutional law, which grants “the right toexercise national self-determination” exclusively to Jewish people. 523 The law establishes
Hebrew as Israel’s official language and downgrades Arabic to a language of “special
status.”524 The law further establishes “Jewish settlement as a national value” and mandates
that the state “will labor to encourage and promote its establishment and development.” 525
The same year that the Nation-State Law was passed, a bill proposing Israel as “a country
for all its citizens” was blocked in the Knesset. 526
147.

In September 2023, while speaking at the 78th Session of the UN General Assembly,
Netanyahu held up a map entitled “The New Middle East,” which excluded any depictionsof a Palestinian State and labeled all of the occupied Palestinian territories as part ofIsrael.527 A political doctrine of total refusal of a Palestinian State was a basic tenet of
Netanyahu’s election platform: in March 2015, he affirmed that if elected, “there will not
be a Palestinian State.”528 Netanyahu’s Likud Party is currently the largest single party in
the Israeli Knesset (with 32 of 120 seats).529

148.

The platform of Netanyahu and the Likud Party is consistent with the government’s steady,de facto annexation of land in the West Bank, where Israeli military authorities have

521

Karadžić Indictments Review at para. 94.
Benjamin Netanyahu Says Israel is Not a State of All its Citizens’, THE GUARDIAN (Mar. 10, 2019),
https://www.theguardian.com/world/2019/mar/10/benjamin-netanyahu-says-israel-is-not-a-state-of-all-its-citizens.
523
Raoul Wootliff, Final Text of Jewish Nation-State Law, Approved by the Knesset Early on July 19, TIMES OF ISR.
(July 18, 2018), https://www.timesofisrael.com/final-text-of-jewish-nation-state-bill-set-to-become-law/.
524
Id.
525
Id.
526
Jonathan Lis, Knesset Council Bans Bill to Define Israel as State for All Its Citizens, HAARETZ (June 4, 2018),
https://www.haaretz.com/israel-news/2018-06-04/ty-article/.premium/knesset-council-bans-bill-to-define-israel-asstate-for-all-citizens/0000017f-e764-d62c-a1ff-ff7f6ce30000.
527
Netanyahu Brandishes Map of Israel that Includes West Bank and Gaza at UN Speech, TIMES OF ISR. (Sept. 22,2023), https://www.timesofisrael.com/liveblog_entry/netanyahu-brandishes-map-of-israel-that-includes-west-bankand-gaza-at-un-speech/.
528
Barak Ravid, Netanyahu: If I'm Elected, There Will Be No Palestinian State, HAARETZ (Mar. 16, 2015),
https://www.haaretz.com/2015-03-16/ty-article/netanyahu-if-im-elected-there-will-be-no-palestinianstate/0000017f-e7c4-dea7-adff-f7ff54dd0000.
529
Number of Seats in the 25th Knesset in Israel in 2022, by Political Party, STATISTA (Aug. 2023),
https://www.statista.com/statistics/1278850/number-of-seats-in-the-24th-knesset-in-israel-by-political-party/.
522

68

appropriated more than one third of the land.530 Israel has either tacitly or overtly
encouraged increasing settlement by the Israeli Jewish population in the West Bank andEast Jerusalem, where, as of early 2024, an estimated 700,000 Israeli settlers resided
illegally.531
149.

Members of Israel’s coalition government have also expressed a desire for full Israeli
control over Gaza, including establishing settlements. Tzvi Sukkot, a member of the
Religious Zionist Party said, “[w]e first need to occupy, annex to destroy all the houses
there, build neighborhoods there.”532 Finance Minister Bezalel Smotrich stated that Israel“will rule there. And in order to rule there securely for a long time, we must have a civilian
presence.”533 Though Prime Minister Netanyahu has reportedly rejected settlement activity
in Gaza, he has asserted Israel will keep “full security control.” 534

150.

Since October 7, 2023, Prime Minister Netanyahu’s government has explicitly rejected
Palestinian statehood, with Netanyahu saying that he was “proud” that he prevented theestablishment of a Palestinian State and asserted that he would “not let the State of Israel
go back to the fateful mistake of Oslo.”535 The Israeli Ambassador to the United Kingdom,
Tzipi Hotovely, relayed a similar message, telling Sky News that there was “absolutely no”
prospect of Israel’s government agreeing to a two-state solution.536

3.d. Addressing Israel’s arguments about genocidal intent
151.

Israel has asserted that the intent needed for the crime of genocide is absent because theState has other legitimate reasons for its actions in Gaza. First, Israel argues that it isengaging in self-defense.537 Self-defense, however, is bounded by requirements ofnecessity and proportionality; Israel’s conduct in Gaza does not appear to meet either ofthese requirements. Second, Israel contends that its conduct in Gaza comports withinternational humanitarian law, which, therefore, demonstrates that it does not have therequisite intent to carry out genocide. The facts set forth in Sections 3.a above, however,indicate that Israel has committed numerous war crimes in violation of international

530

See HUM. RTS. WATCH, A THRESHOLD CROSSED at p. 147.
Israel Advances Peak number of West Bank Settlement Plans in 2023, Watchdog Says, REUTERS (July 13, 2023),
https://www.reuters.com/world/middle-east/israel-advances-peak-number-west-bank-settlement-plans-2023watchdog-2023-07-13/.
532
Mick Krever et al., Israel’s Far-Right Wants to Move Palestinians Out of Gaza. Its Ideas Are GainingAattention,
CNN (Jan. 17, 2024), https://www.cnn.com/2024/01/17/middleeast/israel-far-right-gaza-settler-movement-cmdintl/index.html.
533
Id.
534
Id.
535
Jeremy Sharon, Pointing to Hamas’s Little State,’ Netanyahu Touts His Role Blocking 2-State Solution, TIMES OF
ISR. (Dec. 17, 2023), https://www.timesofisrael.com/pointing-to-hamass-little-state-netanyahu-touts-role-blocking-2state-solution/.
536
Jon Stone, UK’s Cameron Hits Back After Israeli Ambassador Rejects Two-State Solution, POLITICO (Dec. 14,2023), https://www.politico.eu/article/david-cameron-israel-hamas-ambassador-rejects-two-state-solution/.
537
War Against Hamas in Gaza is Act of Self-Defence, Israel Tells World Court, U.N. NEWS (Jan. 12, 2024),
https://news.un.org/en/story/2024/01/1145452; CR 2024/2, Opening Statement of Gilad Noam, Verbatim Record,para. 20 (Jan. 12, 2024). [hereinafter Noam Opening Statement].
531

69

humanitarian law. Thus, contrary to the Israeli government’s assertions, its conduct in Gaza
demonstrates genocidal intent through the State’s violation of the principles of necessity,
distinction, precaution, and proportionality, alongside its obstruction of criticalhumanitarian aid to the people of Gaza (see Section 3.d.ii).
3.d.i. Israel’s claim that it is engaging in self-defense
152.

Israel has rejected accusations that it is committing genocide in Gaza, insisting that it is “ina war of defence against Hamas” 538 and is exercising “the legitimate and inherent right ofa State to defend itself”539 against Hamas’s October 7, 2023, attacks.

153.

The question of whether Israel may assert the right to self-defense against attacks by nonstate actors from within a territory and polity it is occupying is disputed under international
law540 and is outside the scope of this report.541 An assertion by Israel of a right to selfdefense, even if it were proper, does not relieve the Israeli State of its obligations underinternational humanitarian law and human rights law,542 and, in particular, its obligations
under the Genocide Convention.

154.

The right to self-defense is bound by the customary requirements of necessity andproportionality.543 Israel’s self-defense claim likely fails the necessity test. Under

538

War Against Hamas in Gaza is Act of Self-Defence Israel Tells World Court, U.N. NEWS (Jan. 12, 2024),
https://news.un.org/en/story/2024/01/1145452.
539
Id.
540
Article 51 of the UN Charter describes the inherent right of individual or collective self-defense in the case of anarmed attack. See U.N. Charter, art. 51. However, whether Israel can claim self-defense in this case is contested for
two reasons. First, the ICJ has interpreted Article 51 of the UN Charter to create an inherent right of self-defense onlyin the case of an armed attack by one State against another State, first in the Wall Advisory Opinion (see Wall Advisory
Opinion at para. 139) and again in the Democratic Republic of Congo v. Uganda case (see Dem. Rep. Congo v. Uganda
at paras. 146-147). Israel does not claim that the October 7 attacks against it are imputable to a foreign State. Second,
Article 51 of the UN Charter does not apply to threats that originate from occupied territories. In the Wall Advisory
Opinion, the Court held that the threat which Israel regarded as justifying the construction of the wall originated within
the Israeli-controlled OPT, rendering Article 51 of the Charter irrelevant (see Wall Advisory Opinion at para. 139).
Likewise, though Israel officially “disengaged” from Gaza in 2005, Gaza remains occupied under international law(See para. 18 of this report).
541
For analysis of Israel’s claim to self-defense in Gaza, see, e.g., Ralph Wilde, Israel’s War in Gaza is Not a Valid
Act of Self-Defence in International Law, OPINIO JURIS (Nov. 9, 2023), https://opiniojuris.org/2023/11/09/israels-warin-gaza-is-not-a-valid-act-of-self-defence-in-international-law/; Marko Milanovic, Does Israel Have a Right toDefend Itself? EJIL: TALK! (Nov. 14, 2023), https://www.ejiltalk.org/does-israel-have-the-right-to-defend-itself/.
542
See Bosn. & Herz. v. Serb. & Montenegro at para. 430 (“every State may only act within the limits permitted byinternational law”); Prosecutor v. Thaçi et al., KSC-BC-2020-06/F01536, Decision on Defence Motion for Judicial
Notice of Adjudicated Facts with Annex I, para. 24 (Kosovo Specialist Chambers May 18, 2023) (“[S]elf-defencecannot operate as a defence to justify violating a prohibition that is recognized in international law as being absolute.”).
543
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 266, para. 41 (July 8). See also
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), para. 176, 1984 I.C.J. 169 (July 27). In
the context of the current Israeli military campaign in Gaza, the requirements of necessity and proportionality were
further emphasized by many UN member states. See Meeting Coverage, U.N. Security Council, Amid Increasingly
Dire Humanitarian Situation in Gaza, Secretary-General Tells Security Council Hamas Attacks Cannot Justify
Collective Punishment of Palestinian People, 9451st Meeting, SC 15462 (Oct. 24, 2023),
https://press.un.org/en/2023/sc15462.doc.htm.

70customary international law, self-defense satisfies the requirement of necessity “only if[the State] can demonstrate that it could not have achieved these goals without resort toforce and that the degree of force employed did not exceed what was reasonably required
for that purpose.”544 Inherent in the necessity requirement, therefore, is an obligation toseek peaceful means of resolving conflict, where possible. 545 This requirement that a Statejustify an assertion of the right to self-defense is continuous throughout the conflict—aprinciple well established under customary international law and jus ad bellum.546
155.

Israel has not exhausted peaceful measures or shown that force is the only means available
to achieve a legitimate aim in its conduct in Gaza. In fact, Israel has explicitly andrepeatedly rejected peaceful measures since October 7, 2023, with Prime Minister
Benjamin Netanyahu stating in January 2024, that he “will not compromise on full Israeli
security control over all the territory west of Jordan.”547 The Israeli Government has
consistently ruled out ceasefire agreements and rejected hostage-release proposals in favorof “absolute victory.”548 It is improbable that Israel’s continuous and unrelenting attack on
Gaza constitutes the only means to safeguard Israeli interests, including freeing hostages
and protecting Israel’s security (see Section 3.d.ii).

156.

Given the facts set forth in Section 3.a above, Israel’s self-defense claim likely also fails
the proportionality test. Proportionality in the exercise of self-defense applies to a military
operation as a whole. 549 Proportionality demands an assessment of whether the force is

Christopher Greenwood, Self-Defence, in MAX PLANCK ENCYC. OF INT’L LAW, para. 27 (2011). Jus ad bellum isthe branch of international humanitarian law that defines the conditions under which a State may resort to war. What
is Jus ad Bellum and Jus in Bello? ICRC (Jan. 22, 2015), https://www.icrc.org/en/document/what-are-jus-ad-bellumand-jus-bello-0%EF%BB%BF.
545
JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF INTERNATIONAL LAW 722 (8th ed. 2019); Christopher Greenwood,
Self-Defence, in MAX PLANCK ENCYC. OF INT’L LAW, para. 27 (2011); Elizabeth Wilmshurt, Principles ofInternational Law on the Use of Force by States in Self-Defence, CHATHAM HOUSE 7 (Oct. 1, 2005),
https://www.chathamhouse.org/2005/10/principles-international-law-use-force-states-self-defence.
546
See generally Christopher Greenwood, The Relationship between Ius ad Bellum and Ius in Bello, 9 REV. INT’L
STUD. 221 (1983); Eliav Lieblich, On the Continuous and Concurrent Application of ad bellum and in bello
Proportionality, in NECESSITY AND PROPORTIONALITY IN INTERNATIONAL PEACE AND SECURITY LAW (2020);
RUSSELL BUCHAN & NICHOLAS TSAGOURIAS, THE RIGHT OF INDIVIDUAL AND COLLECTIVE SELF-DEFENSE 67 (2021).
547
Abeer Salman et al., Netanyahu Again Rejects Palestinian Sovereignty Amid Fresh US Push for Two-State Solution,
CNN (Jan. 21, 2024), https://www.cnn.com/2024/01/21/middleeast/netanyahu-palestinian-sovereignty-two-statesolution-intl/index.html.
548
Netanyahu Rejects Hamas Terms for Cease-Fire, Wows to Fight Until ‘Absolute Victory, PBS (Feb. 7, 2024),
https://www.pbs.org/newshour/world/blinken-meets-with-israeli-leaders-to-discuss-possible-cease-fire-and-hostagetalks; Patrick Kingsley, Netanyahu Rejects Calls for a Cease-fire — and for His Resignation, N.Y. TIMES (Oct. 30,2023), https://www.nytimes.com/2023/10/30/world/middleeast/netanyahu-israel-hamas-cease-fire.html.
549
Oil Platforms (Islamic Republic of Iran v. United States of America), para. 77, Judgment, 2003 I.C.J. 161 (Nov.
6).
544

71

required to reverse the effects of the armed attack 550 and if “the harmful effects of the force. . . are outweighed by achieving the legitimate aims.”551
157.

Israel’s declared military objective is to destroy Hamas.552 Assuming this is a legitimate
aim, its indiscriminate military attacks on civilian targets in Gaza and the use of collective
punishment against Palestinian civilians, including through starvation and restriction ofhumanitarian aid (see Section 3.a), give rise to grave violations of international
humanitarian law. Israel’s attacks on Gaza have violated international legal principles
demanding that the military distinguish between civilians and combatants 553 and balance
the anticipated loss of civilian life and damage with the strategic military advantage of eachattack.554

3.d.ii. Israel’s claim that its conduct in Gaza negates genocidal intent.
158.

In its opening statements to the ICJ, Israel claimed that proof of genocidal intent waslacking on multiple grounds. According to Israel, what it “seeks by operating in Gaza is
not to destroy a people, but to protect a people, its people, who are under attack on multiple
fronts, and to do so in accordance with the law.”555 It further asserted that, by attacking
Gaza, “Israel seeks neither to permanently occupy Gaza or to displace its civilian
population,”556 but rather to engage in “a war of defense against Hamas – not against thePalestinian people.”557 These assertions are directly contradicted by multiple declarations
by Israeli leadership that have indicated a clear intent to inflict damage and devastation
upon Gaza and its people (see Section 3.b.i) and occupy the territory (see Section 3.b.iii).

159.

Israel has additionally claimed that a primary objective of its attack on Gaza was to secure
the release of Israeli hostages, thus negating genocidal intent.558 This too is undermined by
the Israeli military’s conduct during the war on Gaza, which continues to endanger the livesof Israeli hostages. Specifically, while 105 Israeli hostages were released under anegotiated temporary ceasefire deal, Israeli strikes on Gaza have reportedly killed a number

Christopher Greenwood, Self-Defence, in MAX PLANCK ENCYC. OF INT’L LAW, para. 28 (2011).
Noam Lubell, The ILA’s 2018 Report on Aggression and the Use of Force, 6 J. ON THE USE OF FORCE AND INT’L
L. 4,10 (2018). See also David Kretzmer, The Inherent Right to Self-Defense and Proportionality in Jus Ad Bellum,
24 EUR. J. INT’L LAW 235, 235-282.
552
CR 2024/2, Statement of Malcolm Shaw on Prime Facie Jurisdiction and Preservation of the Rights of the Parties,
Verbatim Record, para. 50 [quoting a January 10, 2024, statement by the Israeli Prime Minister] (Jan. 12, 2024)[hereinafter Statement of Malcolm Shaw].
553
1907 Hague Regulations, art. 25; AP I, art. 48 (adopted by consensus), art. 51(2) (adopted by 77 votes in favor,
one against and 16 abstentions), and art. 52(2) (adopted by 79 votes in favor, none against and 7 abstentions).
554
AP I, art. 51(5)(b) (adopted by 77 votes in favor, one against and 16 abstentions) (cited in Vol. II, Ch. 4, § 1) and
Article 57(2)(a)(iii) (adopted by 90 votes in favor, none against and 4 abstentions) (cited in Vol. II, Ch. 5, § 325).
555
CR 2024/2, Opening Statement of Tal Becker, Verbatim Record, para. 48 (Jan. 12, 2024) [hereinafter Becker
Opening Statement].
556
Becker Opening Statement, para. 50.
557
Becker Opening Statement, para. 51. See Section 3.d.i on the question of the existence of a right to self-defense for
Israel against the people it occupies in Gaza.
558
Statement of Malcolm Shaw, para. 47.
550
551

72

of Israeli hostages, and Israeli sniper fire has killed three hostages.559 Multiple military
experts, members of the current war cabinet, 560 former Israeli Prime Minister Ehud
Barak,561 and even released hostages have warned that Israel’s conduct of the hostilities in
Gaza presents a grave danger to the life and safety of Israeli hostages in Gaza. 562
160.

Finally, Israel has argued before the ICJ that its conduct in Gaza negates genocidal intent,
asserting that (a) it has restricted “its targeting practices to attack military personnel orobjectives”563 and that it has done so in a “proportionate manner in each case”;564 and (b)it actively mitigates civilian harm “such as by forewarning civilians of impending action
by the unprecedented and extensive use of telephone calls, leafletting and so forth, coupledwith the facilitation of humanitarian assistance.”565

161.

Contrary to these claims, Israel has targeted both military and civilian targets; has failed toprotect civilians; and has impeded humanitarian aid access. Each of Israel’s defensive
claims are undermined by its defiance of the most basic international humanitarian legal
principles governing the rules of war, including the principle of proportionality (see Section
3.d.i);566 the principle of distinction, whereby the State must take care to verify the statusof the target as a legitimate military target, and not a civilian target (Section 3.d.ii.1);567
and the principle of precaution, whereby they must take “all feasible precautions” tominimize loss of civilian life and damage to civilian objects (Section 3.d.ii.2).568 Relatedly,
Israel through its acts and omissions has actively undermined critical humanitarianassistance for civilians in Gaza (Section 3.d.ii.3).

162.

Israel’s conduct of hostilities in Gaza, therefore, demonstrates a failure to adhere to theprinciples of international humanitarian law requiring the protection of civilians. Even if

559

Emily Rose, Israeli troops killed hostages, mistaking their cries for help as ambush -military, REUTERS (Dec. 28,2023), https://www.reuters.com/world/middle-east/israeli-troops-killed-hostages-mistaking-their-cries-help-ambushmilitary-2023-12-28/.
560
Julia Frankel, Najib Jobain & Bassem Mroue, Rifts Emerge Among Top Israeli Officials Over How to Handle the
War Against Hamas in Gaza, AP NEWS (Jan. 19, 2024), https://apnews.com/article/israel-hamas-war-news-1-192024-e5f45fb7b14d3dc8ff64b0aee4b473aa.
561
Rania Abushamala, Former Israeli Prime Minister Warns Netanyahu: ‘We Will End Up Mired in Gaza Quagmire’,
ANADOLU AJANSI (Jan. 20, 2024), https://www.aa.com.tr/en/middle-east/former-israeli-prime-minister-warnsnetanyahu-we-will-end-up-mired-in-gaza-quagmire/3114056.
562
Ivana Kottasová & Adi Koplewitz, Israel’s repudiation of a deal with Hamas draws fury from hostages’ families,
CNN (Feb. 9, 2024), https://www.cnn.com/2024/02/09/middleeast/israel-rejects-deal-hostage-families-anger-intlcmd/index.html; Irene Nasser, Tim Lister & Richard Greene, Leaked audio of heated meeting reveals hostages’ furyat Netanyahu, CNN (Dec. 6, 2023), https://www.cnn.com/2023/12/06/middleeast/leaked-audio-of-heated-meetingreveals-hostages-fury-at-netanyahu/index.html; Israeli hostage families angry after meeting with Netanyahu,
REUTERS (Dec. 5, 2023), https://www.reuters.com/world/middle-east/israeli-hostage-families-angry-after-meetingwith-netanyahu-2023-12-05/.
563
Statement of Malcolm Shaw, para. 37.
564
Id.
565
Becker Opening Statement, para. 37.
566
Rule 14. Proportionality in Attack, ICRC, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule14.
567
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims ofinternational armed conflicts, arts. 51, 57, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I]; Rule 1, the Principle ofDistinction between Civilians and Combatants, ICRC, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule1.
568
Rule 15, Principle of Precautions in Attack, ICRC, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule15.

73

compliance with international humanitarian law can negate genocidal intent, Israel has
failed to demonstrate its compliance, given its indiscriminate attacks on civilian targets,
failure to mitigate civilian harm, and imposition of impediments to humanitarian aid.
3.d.ii.1. Violation of principle of distinction
163.

Under the principle of distinction, a State has the burden of verifying that an object orindividual is a legitimate military target. In cases of doubt, commanders must presume thecivilian status of the object or individual.569 Similarly, when there is uncertainty as towhether an object normally dedicated to civilian purposes, “such as a place of worship, ahouse or other dwelling or a school, is being used to make an effective contribution tomilitary action,” the commander shall presume that it is a civilian object. 570

164.

Israel’s extensive attacks on Palestinian civilians in Gaza have been documented in Section
3.f. Moreover, facts indicate that Israeli military policy actively disregards the mandate todistinguish between military targets and civilians. This policy is evident in the existence ofand reliance on an artificial intelligence (AI) targeting system known as “Lavender,” asrevealed by six current Israeli intelligence officers to the Israeli publication, +972
Magazine.571

165.

Israeli intelligence officers stated that during the early phases of the conflict, the army
“almost completely relied on [L]avender,” which categorized as many as 37,000
Palestinians as suspected militants. 572 There was “no requirement to thoroughly check why
the machine made those choices or to examine the raw intelligence data on which they
were used,”573 nor meaningful capacity to audit AI-generated targeting choices, even if
there had been such a requirement.574 This raw training data treated the term “Hamas
operative” loosely to include civil defense workers. The target generation resulting fromthis overly inclusive training data “made Lavender more likely to select civilians by

569

AP I, arts. 50(1), 52(3).
AP I, art. 52(3); Rechtbank Den Haag, C/09/581972 HA ZA 19-1099 and C/09/604819 HA ZA 20/1244, 23-112022, para 5.18 [hereinafter Dutch Chora Case].
571
Yuval Abraham, ‘Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza, +972 MAGAZINE (Apr.
3, 2024), https://www.972mag.com/lavender-ai-israeli-army-gaza/ (According to statements from six current Israeli
intelligence officers, Lavender gathers data on “incriminating features” possessed by existing Hamas militants andrapidly assesses whether individuals among the Gaza general population share those features, giving each individuala rating of 1 to 100 that expresses how likely it is that they are a militant. The Israeli military determines the acceptable
rating threshold at which to attack the target.).
572
Id.
573
Id.
574
“But an equally problematic aspect of the deployment of AI in these scenarios is the probabilistic nature of AI
assessments. Systems like ‘The Alchemist’ and ‘The Gospel’ introduce claims based on statistical correlations, thenature of which is at best partially understood by the decisionmaker. Military commanders who bear the onus of
responsibility under IHL for faulty targeting, already suffer from a lack of nuanced understanding of traditional
intelligence production cycles making them inadequate in supervising those processes. Their capacity to do so in an
AI-environment, where they have even less capacity to challenge the algorithmic black box advising them, entails
ever further erosion of their moral agency.” Omar Yousef Shehabi & Asaf Lubin, Israel-Hamas 2024 SymposiumAlgorithms of War: Military AI and the War in Gaza, LIEBER INST. (Jan. 24, 2024),
https://lieber.westpoint.edu/algorithms-war-military-ai-war-gaza/.
570

74

mistake when its algorithms were applied to the general population.” 575 As an Israeli
military source admitted, “it means you’re including many people with a civilian
communication profile as potential targets.” 576 According to one military source, humanbeings served as a “rubber stamp” for the machine’s decisions, spending roughly 20
seconds per target—primarily to check whether the target was male—before authorizing abombing.577 Lavender also designated children as targets; as one source noted, “[n]ormally,
operatives are over the age of 17, but that was not a condition.” 578 As a result of theunchecked AI program’s algorithm, “thousands of Palestinians—most of them women or
children or people who were not involved in the fighting—were wiped out by Israeli
airstrikes.”579
166.

The intelligence officers further noted that Lavender mistakenly flagged individuals with“communication patterns similar to known Hamas or PIJ [Palestinian Islamic Jihad]
operatives,” despite not being members of Hamas—including civil defense workers,
policemen, the relatives of militants, and residents, who shared a similar name or nickname
to an operative.580 A senior Israeli military officer noted, “the machine did it coldly. And
that made it easier.”581 The same officer noted that the automation was a result of a constantpush within the Israeli military to generate targets. If Lavender did not identify targets in agiven day, “we attacked at a lower threshold. We were constantly being pressured: ‘Bringus more targets.’ They really shouted at us. We finished [killing] our targets very
quickly.”582

167.

International humanitarian law demands that during combat, military forces must “at all
times distinguish between civilians and combatants” and verify the military status of thetarget.583 The use of AI mass targeting, which uses data known to confuse militants withcivilians, and which is employed without human verification or means to audit the system,
violates the principle of distinction. Israel’s contravention of this principle is further
demonstrated by its complete disregard for the number of civilian casualties that
accompanied its AI targeting system.

168.

In addition to using indiscriminate AI-generated targeting, Israel has created “kill zones”(also known as “combat zones”) in and around areas of Gaza.584 According to a reserve
officer quoted in the Israeli newspaper Haaretz, “As soon as people enter it, mainly adultYuval Abraham, ‘Lavender’: The AI machine directing Israel’s bombing spree in Gaza, +972 MAGAZINE (Apr. 3,2024), https://www.972mag.com/lavender-ai-israeli-army-gaza/.
576
Id.
577
Id.
578
Id.
579
Id.
580
Id.
581
Id.
582
Id.
583
Rule 1, the Principle of Distinction between Civilians and Combatants, ICRC, https://ihldatabases.icrc.org/en/customary-ihl/v1/rule1.
584
Yaniv Kubovich, Israel Created ‘Kill Zones’ in Gaza. Anyone Who Crosses into Them is Shot, HAARETZ (Mar. 31,2024), https://www.haaretz.com/israel-news/2024-03-31/ty-article-magazine/.premium/israel-created-kill-zones-ingaza-anyone-who-crosses-into-them-is-shot/0000018e-946c-d4de-afee-f46da9ee0000.
575

75

males, orders are to shoot and kill, even if that person is unarmed.” 585 The “kill zones” lackclear markings, and local commanders are described as “writing their own rules ofengagement.”586 The designation of entire areas where those entering are automaticallytargeted, without further verification as to their military or civilian status, violates theprinciple of distinction.
169.

Regarding attacks on civilian objects, Israel has targeted schools and universities (seeSection 3.a.iii.5), hospitals (see Section 3.a.iii.3), and mosques (see section 3.b.ii.3). Israel
argues that civilian casualties accrue because Hamas uses the civilian population, as wellas civilian objects, as cover and “human shields.”587 Israel argued before the ICJ thatHamas fighters have planted explosives in mosques and schools, used ambulances totransport fighters, dressed up as civilians, commandeered aid trucks, and fired from UN
facilities.588 Israel further argued that “civilian damage and loss are caused in the legitimate
pursuit of military objectives.”589

170.

International humanitarian law prohibits the use of human shields.590 Nevertheless, even
where a party to a conflict uses civilian presence to shield its forces from attack,international humanitarian law does not release the other party from its obligations withrespect to civilians.591 As the ICTY Trial Chamber in Karadžić emphasized, “the presenceof individual combatants within the civilian population attacked does not necessarilychange the fact that the ultimate character of the population is civilian.” 592

171.

Ignoring the requirements of international humanitarian law to safeguard civilian
populations, Israeli intelligence sources reported that they were authorized to kill up to 15
to 20 civilians alongside each “junior militant,” otherwise known as “garbage targets”
because of their low-level role.593 Along with senior Hamas commanders, operatives werepermitted to kill “hundreds” of civilians per target—the majority of whom were “womenand children.”594

172.

Furthermore, despite Israel’s claims that its targeting has complied with international law
as a matter of institutional policy (e.g., through regular Israeli military directives that urge
compliance with international humanitarian law595), Israel has demonstrated a failure in thepast to seek credible intelligence that confirms the military nature of its targets, using

585

Id.
Id.
587
Statement of Malcolm Shaw, para. 47 [quoting a January 10, 2024, statement by the Israeli Prime Minister].
588
Becker Opening Statement, para. 43.
589
Statement of Malcolm Shaw, para. 7.
590
AP I, art. 51 (7).
591
AP I, art. 51 (8).
592Prosecutor v. Radovan Karadžić, para. 453 IT-95-5/18-T, Trial Judgment (I.C.T.Y. Mar. 24, 2016) [hereinafter
Karadžić Trial Judgment].
593
Yuval Abraham, ‘Lavender’: The AI machine directing Israel’s bombing spree in Gaza, +972 MAGAZINE (Apr. 3,2024), https://www.972mag.com/lavender-ai-israeli-army-gaza/.
594
Id.
595
Statement of Malcolm Shaw, paras. 43–44.
586

76

information that had not been updated “over the past year or checked prior to the attack.”596
Breaking the Silence, an Israeli military veteran whistleblower group, stated that in priorcampaigns, the Israeli military granted “lower-ranking officers the power to approve strikes
that may result in significant collateral damage to civilians.” 597
173.

Israel’s failure to enforce compliance with international humanitarian law is further
demonstrated by illegal conduct at the lower ranks. 598 Footage has surfaced, for example,of Israeli soldiers boasting about killing an unarmed civilian,599 burning down anddemolishing houses,600 and running over a Palestinian man with a tank.601 An incident
where Israeli military soldiers killed three unarmed Israeli hostages further demonstrates aclear disregard of international humanitarian law. The three hostages cried for help andwaved a white flag,602 but instead of presuming that the individuals were civilian, asinternational humanitarian law requires,603 the Israeli soldiers believed that such cries forhelp were “a ruse by Hamas militants.”604 Rather than seeking further intelligence to verify
the status of the individuals, the Israeli soldiers killed them. 605 These instances of Israeli
forces failing to abide by principles of distinction, many months into the conflict, illuminate
the Israeli military’s failure to implement the rules of international humanitarian law.

3.d.ii.2. Violation of principle of precaution
174.

Israel has further asserted that it has made “extensive” efforts to “mitigate civilian
harm.”606 Under customary international law, “all feasible precautions must be taken to596

Yaniv Kubovich & Jack Khoury, Outdated Intelligence, Social Media Rumors: Behind Israel's Killing of Gaza
Family, HAARETZ (Nov. 15, 2019), https://www.haaretz.com/israel-news/2019-11-15/ty-article/.premium/outdatedintelligence-social-media-rumors-behind-israels-killing-of-gaza-family/0000017f-e69e-dc7e-adff-f6bf11f50000.
597
Avner Gvaryahu, The Myth of Israel’s ‘Moral Army’: The Failure of the IDF’s Targeting Protocols is Producing
Massive Civilian Casualties, FOREIGN AFF. (Mar. 4, 2024), https://www.foreignaffairs.com/israel/myth-israels-moralarmy.
598
Statement of Malcolm Shaw, paras. 43–44.
599
Laith
Arafeh(@ArafehLaith),
X
(Mar.
10,
2024,
5:11
AM),
https://x.com/ArafehLaith/status/1766753821764575540.
600
Middle East Eye, Israeli soldiers boast about burning down a house in Gaza, YOUTUBE (Jan. 2, 2024),
https://www.youtube.com/watch?v=0JMu4OaDNeQ; Middle East Eye (middleeasteye), TikTok (Dec. 29, 2023),
https://www.tiktok.com/@middleeasteye/video/7318014077530361121.
601
Middle East Eye, Israeli soldier boasts about 'running over' Palestinian man with tank, YOUTUBE (Mar. 6, 2024),
https://www.youtube.com/watch?v=RIigSztmG18.
602
Emily Rose, Israeli troops killed hostages, mistaking their cries for help as ambush -military, REUTERS (Dec. 28,2023), https://www.reuters.com/world/middle-east/israeli-troops-killed-hostages-mistaking-their-cries-help-ambushmilitary-2023-12-28/.
603
AP I, arts. 50(1), 52(3).
604
Emily Rose, Israeli Troops Killed Hostages, Mistaking their Cries for Help as Ambush -Military, REUTERS (Dec.
28, 2023), https://www.reuters.com/world/middle-east/israeli-troops-killed-hostages-mistaking-their-cries-helpambush-military-2023-12-28/.
605
Id.
606
Becker Opening Statement, para. 42.

77

avoid, and in any event to minimize, incidental loss of civilian life.”607 This encompasses
the duty to give “effective advance warning” 608 and to use means and methods of war thatminimize civilian casualties. 609
175.

Contrary to its claims of mitigating civilian harm, Israel’s military operations demonstrate
an absence of care that violates the principle of precaution. Whereas the duty of precaution
under international humanitarian law requires taking “all feasible precautions” to minimize
incidental civilian loss, the Israeli military has chosen not to subject its targets to further
verification after the Lavender AI has mass-generated them, beyond the simple assessmentof whether the target is male.610 In this regard, the Israeli military has clearly failed to take“all feasible” measures to minimize civilian loss and thus have violated the principle ofprecaution.

176.

Other evidence showing Israel has not taken “all feasible precautions” to minimize civilian
casualties includes the types of munitions that its military has used in its bombardment of
Gaza. In Martić, the ICTY Trial Chamber held that a “non-guided, high dispersion”
weapon constituted an indiscriminate weapon, “the use of which in densely populated
civilian areas . . . will result in the infliction of severe casualties.”611 The Tribunal
concluded that this was evidence of a deliberate attack against the civilian population,
sufficient to convict the defendant of violating the laws and customs of war.612 In Karadžić,
the indiscriminate and prolonged shelling of Sarajevo, including the “high numbers ofshells that fell on the city during the conflict, including on its residential areas and civilian
objects,” constituted the deliberate and disproportionate targeting of civilians.613
Comparatively in Gaza, the Office of the Director of National Intelligence, a U.S.
governmental agency, has noted that around 40 to 45 percent of Israel’s air-to-groundmunitions have been unguided.614 Israel has also deployed 2,000-pound “dumb” bombs,
which have a fragmentation radius of 1,200 feet, in a bombardment campaign unrivalledin density since the Vietnam war.615 Israel’s use of unguided “dumb bombs,” in one of the607

Rule 15, Principle of Precautions in Attack, ICRC, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule15;
Prosecutor v. Kupreškić et. al., para. 425, IT-95-16, Trial Judgment (I.C.T.Y. Jan. 14, 2000) [hereinafter Kupreškić
Trial Judgment].
608
Rule 20, Advance Warning, ICRC, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule20.
609
AP I, art. 57(2)(a)(ii). For a discussion of state practice in relation to these requirements, see Rule 15, Principle ofPrecautions in Attack, ICRC, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule15.
610
Yuval Abraham, ‘Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza, +972 MAGAZINE (Apr.
3, 2024), https://www.972mag.com/lavender-ai-israeli-army-gaza/. See also Avner Gvaryahu, The Myth of Israel’s‘Moral Army’: The Failure of the IDF’s Targeting Protocols is Producing Massive Civilian Casualties, FOREIGN AFF.
(Mar. 4, 2024), https://www.foreignaffairs.com/israel/myth-israels-moral-army.
611
Prosecutor v. Milan Martić, para. 463, IT-95-11-T, Trial Judgment (I.C.T.Y. June 12, 2007) [hereinafter Martić
Trial Judgment].
612
Martić Trial Judgment at para. 472.
613
Karadžić Trial Judgment at para. 4497.
614
Natasha Bertrand & Katie Bo Lillis, Exclusive: Nearly Half of the Israeli Munitions Dropped on Gaza are
Imprecise‘Dumb
Bombs,’USIntelligence
Assessment
Finds,
CNN
(Dec.
14,
2023),
https://www.cnn.com/2023/12/13/politics/intelligence-assessment-dumb-bombs-israel-gaza/index.html.
615
Tamara Qilbawi et al., ‘Not Seen Since Vietnam’: Israel Dropped Hundreds of 2,000-Pound Bombs on Gaza,
Analysis Shows, CNN (Dec. 22, 2023), https://www.cnn.com/gaza-israel-big-bombs/index.html.

78

densest civilian areas in the world violates the international humanitarian legal principlethat States must take “all feasible precautions . . . to avoid, and in any event to minimize,incidental loss of civilian life.” 616
177.

Under international humanitarian law, the Israeli military must also give “effective advancewarning” to civilians prior to commencing military operations that may threaten them. 617
Although the Israeli military has, at various times, given civilians in Gaza warnings toevacuate prior to an attack, it has also repeatedly conducted airstrikes on designatedevacuation routes and people fleeing through them.618 For example, in October 2023, Israel
issued guidance for residents in North Gaza to flee to the south of Wadi Gaza “for yourown safety and the safety of your families,” and nonetheless proceeded to bomb the area
south of Wadi Gaza the next day. 619 Israel has also bombed areas which it had previously
declared as “safe zones.”620 This pattern of warning civilians, then bombing the areas towhich they evacuate,621 indicates such warnings were not intended to protect persons
fleeing from being targeted and killed. These advance warnings by Israel’s were ineffectiveat best, and at worst, served to expose civilians to grave harm.

178.

Additionally, warnings that induce mass evacuation can also constitute a violation of theprohibition on the forcible displacement of civilians.622 International tribunals have heldthat inducing civilians to leave via such measures constitutes unlawful displacement if
there is no realistic alternative to departure, and if the State undertook the measures with
the intent of forcing people to leave.623 The ICTY Appeals Chamber in Stakić emphasizedthat forcible expulsions include expulsions conducted by “fear of violence, duress,
detention, psychological oppression or abuse of power . . . or by taking advantage of acoercive environment.”624 Furthermore, relocation that arises out of a State’s own
inducement of a humanitarian crisis constitutes unlawful displacement. 625 As evidenced by
the facts in Section 3.a.iii.2, Israel’s relocation of over one million people to the south, andcontinued relocation further and further to the edges of Gaza’s southern border, constitutes
forced expulsion.

616

Rule 15, Principle of Precautions in Attack, ICRC, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule15;
Kupreškić Trial Judgment at para. 524.
617
AP I, art. 57(2)(c).
618
Yahya Abou-Ghazala, They Followed Evacuation Orders. An Israeli Airstrike Killed Them the Next Day., CNN(Oct. 17, 2023), https://www.cnn.com/2023/10/16/middleeast/israel-palestinian-evacuation-orders-invs/index.html.
619
Id.
620
Najib Jobain, Samya Kullab & Ravi Nessman, As Israel’s Bombing Hits Declared Safe Zones’, Palestinians
Trapped in Gaza Find Danger Everywhere, PBS (Oct. 19, 2023), https://www.pbs.org/newshour/world/as-israelsbombing-hits-declared-safe-zones-palestinians-trapped-in-gaza-find-danger-everywhere.
621
Ruth Sherlock & Daniel Wood, Israel Told Palestinians to Evacuate to Southern Gaza — and Stepped-Up Attacks
There, NPR (Nov. 18, 2023), https://www.npr.org/2023/11/17/1213579692/israel-gaza-evacuation-south-attacks.
622
Sara Benabbass & Marten Zwanenburg, The Interaction Between the Obligation to Warn and Other Rules of IHL,
J. INT’L HUMAN. LEGAL STUD. 1, 20 (2023); Geneva Convention IV, art. 49.
623
Eritrea-Ethiopia Claims Commission, Civilian Claims, Ethiopia’s Claim 5, Partial Award, para. 121–26 (Dec. 17,
2004).
624
Prosecutor v. Milomir Stakić, para. 281, IT-97-24-A, Appeals Judgment (I.C.T.Y. Mar. 22, 2006) [hereinafter
Stakić Appeals Judgment].
625
Stakić Appeals Judgment, para. 287.

79

3.d.ii.3. Failing to facilitate and actively undermining access to humanitarian aid
179.

Israel has also argued that it has facilitated the entry of humanitarian aid into Gaza.626
Under international law, “the parties to the conflict must allow and facilitate rapid andunimpeded passage of humanitarian relief for civilians in need, which is impartial incharacter and conducted without any adverse distinction, subject to their right ofcontrol.”627 If a humanitarian organization which provides relief on an impartial and nondiscriminatory basis has the capability to deliver aid to a civilian population threatenedwith starvation, “a party is obliged to give their consent” and, in any case, they cannot
refuse consent “on arbitrary grounds.”628 In its first provisional measures order of January
26, 2024, the ICJ ordered Israel to “take immediate and effective measures to enable theprovision of urgently needed basic services and humanitarian assistance to address theadverse conditions of life faced by Palestinians in the Gaza Strip.” 629

180.

Despite these ICJ directives, the humanitarian situation in Gaza has deteriorated such that
the Court issued a second provisional measures order indicating further binding obligations
for Israel on March 28, 2024. 630 The Court noted, “Palestinians in Gaza are no longer
facing only a risk of famine . . . but that famine is setting in,” 631 that Palestinians in Gaza
are experiencing “unprecedented levels of food insecurity,” 632 and that the already“catastrophic humanitarian situation . . . has deteriorated even further.”633 The Court
additionally noted that “there is no substitute for land route and entry points from Israel
into Gaza to ensure the effective and efficient delivery,” and that there is an “urgent needto increase the capacity and number of open land crossing points into Gaza and to maintainthem open so as to increase the flow of aid delivery.”634

181.

In its second provisional measures order, the Court instructed the State of Israel:[First, to take all] necessary and effective measures to ensure, without delay,in full co-operation with the United Nations, the unhindered provision atscale by all concerned of urgently needed basic services and humanitarianassistance, including food, water, electricity, fuel, shelter, clothing, hygiene
and sanitation requirements, as well as medical supplies and medical care
to Palestinians throughout Gaza, including by increasing the capacity andnumber of land crossing points and maintaining them open for as long asnecessary.635

626

Statement of Malcolm Shaw, para. 42.
Rule 55, Access for Humanitarian Relief to Civilians in Need, ICRC, https://ihl-databases.icrc.org/en/customaryihl/v1/rule55.
628
Id.
629
S. Afr. v. Isr., First Provisional Measures Order at para. 86(4).
630
Id. at paras. 21–22.
631
S. Afr. v. Isr., Second Provisional Measures Order at para. 21.
632
Id. at para. 31.
633
Id. at para. 30.
634
Id. at para. 35.
635
Id. at para. 51(2)(a).
627

80Second, the ICJ ordered Israel to ensure that its military does not commit acts in violationof the Genocide Convention, “including by preventing, through any action, the delivery ofurgently needed humanitarian assistance.” 636 These obligations are binding on Israel,pursuant to Article 41 of the Statute of the ICJ. 637
182.

In his separate declaration, Judge Salam, President of the ICJ, emphasized that these neworders can only “take full effect” if Israel complies with the ceasefire ordered by Security
Council Resolution 2728 (2024),638 and if this “leads to a lasting sustainable ceasefire.”639
Judge Yusuf similarly emphasized that “the only effective way” for Israel to comply with
the Genocide Convention “is to suspend its military operations to allow for the delivery ofaid.”640 Judges Xue, Brant, Gómez Robledo, and Tladi emphasized in their joint declarationthat “suspension of military operations . . . appears indispensable for any meaningful
implementation of the provisional measures indicated.”641 Judge Charlesworth also notedthat the suspension of military operations “is the only way to ensure that basic services andhumanitarian assistance reach the Palestinian population.” 642

183.

Israel has violated its duties under international humanitarian law and the two ICJ
provisional measure orders to facilitate the entry of humanitarian aid into Gaza. The
majority of the population in Gaza is threatened with starvation (see Section 3.a.iii.1). By
July 2024, more than half the population is projected to experience “catastrophic” levels offood insecurity, the most severe level classified by the Integrated Food Security Phase
Classification scale. 643 The UN Committee on the Rights of the Child also issued astatement noting that “children in Gaza are starving to death,” and that the “looming
invasion of Rafah will take the fragile situation to the breaking point, putting the lives of
600,000 children at immediate risk, and will rapidly reach the tipping point of famine.” 644

184.

Despite the threat of starvation, Israel continues to arbitrarily refuse and impede aid
entering Gaza. In December 2023, Israeli forces conducted an air strike on the Karem Abu
Salem/Kerem Shalom crossing—killing the director responsible for coordinating the entryof aid.645 In the weeks following the first ICJ provisional measures order, the number of636

Id. at para. 51(2)(b).
Id. at para. 48.
638
S.C. Res. 2728 (Mar. 25, 2024).
639
S. Afr. v. Isr., Second Provisional Measures Order, Declaration of President Salam, 2024 I.C.J., para. 11.
640
S. Afr. v. Isr., Second Provisional Measures Order, Declaration of Judge Yusuf, 2024 I.C.J., para. 8.
641
S. Afr. v. Isr., Second Provisional Measures Order, Declaration of Judges Xue, Brant, Gómez Robledo, and Tladi,2024 I.C.J., para. 7.
642
S. Afr. v. Isr., Second Provisional Measures Order, Declaration of Judge Charlesworth, 2024 I.C.J., para. 7.
643
INTEGRATED FOOD SECURITY PHASE CLASSIFICATION, GAZA STRIP: ACUTE FOOD INSECURITY SITUATION FOR 15
FEBRUARY - 15 MARCH 2024 AND PROJECTION FOR 16 MARCH - 15 JULY 2024 (Mar. 18, 2024),
https://www.ipcinfo.org/ipc-country-analysis/details-map/en/c/1156872/?iso3=PSE.
644
Press Release, OHCHR: Gaza: Halt the War Now to Save Children Dying of Imminent Famine, UN Committee
Warns (Mar. 21, 2024), https://www.ohchr.org/en/press-releases/2024/03/gaza-halt-war-now-save-children-dyingimminent-famine-un-committee-warns.
645
OXFAM, INFLICTING UNPRECEDENTED SUFFERING AND DESTRUCTION: SEVEN WAYS THE GOVERNMENT OF ISRAELIS DELIBERATELY BLOCKING AND/OR UNDERMINING THE INTERNATIONAL HUMANITARIAN RESPONSE IN THE GAZASTRIP 5 (Mar. 15, 2024), https://policy-practice.oxfam.org/resources/inflicting-unprecedented-suffering-anddestruction-seven-ways-the-government-of-621591/.
637

81

trucks entering Gaza decreased by a third. 646 As Oxfam reported, Israel has rejected an
entire warehouse full of oxygen, incubators, water, and sanitation gear. 647 Israel has also
allowed Israeli protestors to cause severe delays in aid delivery by obstructing the Nitzanascanning point, which scans aid trucks going into Gaza.648 Israel has banned the entry into
Gaza of fuel and backup generators, causing the collapse of Gaza’s water, sanitation, andhygiene system.649
185.

Furthermore, Israeli soldiers have targeted and killed many civilians who attempted toaccess the aid that has reached Gaza. There have been at least 14 reported incidents of“shooting, shelling and targeting groups gathered to receive urgently needed supplies fromtrucks or airdrops between mid-January and the end of February 2024,” including a“massacre” of 112 people gathered to collect flour on February 29, 2024.650 As early as
October 2023, Israeli airstrikes targeted bakeries supported by UNRWA.651

186.

Israel continues to deliberately target humanitarian workers, thereby deterring aid fromreaching Gaza. Merely five days after the ICJ’s second provisional measures order, theIsraeli military struck three cars that belonged to World Central Kitchen (WCK), killingseven aid workers (see Section 3.a.iii.1). 652 Following the strike, WCK and otherhumanitarian aid organizations suspended operations in Gaza.653 This attack violatedIsrael’s obligations under international humanitarian law to facilitate the flow ofhumanitarian aid, as well as its legal obligations arising from the ICJ’s provisional
measures order to ensure “without delay . . . the unhindered provision of aid” and to refrain

646

Israel Defying ICJ Ruling to Prevent Genocide by Failing to Allow Adequate Humanitarian Aid to Reach Gaza,
AMNESTY INT’L (Feb. 26, 2024), https://www.amnesty.org/en/latest/news/2024/02/israel-defying-icj-ruling-toprevent-genocide-by-failing-to-allow-adequate-humanitarian-aid-to-reach-gaza/.
647
Press Release, Oxfam, Israel Government Continues to Block aid Response Despite ICJ Genocide Court Ruling(Mar. 17, 2024), https://www.oxfam.org/en/press-releases/israel-government-continues-block-aid-response-despiteicj-genocide-court-ruling.
648
OXFAM, INFLICTING UNPRECEDENTED SUFFERING AND DESTRUCTION: SEVEN WAYS THE GOVERNMENT OF ISRAELIS DELIBERATELY BLOCKING AND/OR UNDERMINING THE INTERNATIONAL HUMANITARIAN RESPONSE IN THE GAZASTRIP 5 (Mar. 15, 2024), https://policy-practice.oxfam.org/resources/inflicting-unprecedented-suffering-anddestruction-seven-ways-the-government-of-621591/.
649
Id. at 6.
650
Press Release, OHCHR, UN Experts Condemn ‘Flour Massacre’, Urge Israel to End Campaign of Starvation in
Gaza (Mar. 5, 2024), https://www.ohchr.org/en/press-releases/2024/03/un-experts-condemn-flour-massacre-urgeisrael-end-campaign-starvation-gaza.
651
Kaamil Ahmed & Elena Morresi, Airstrikes on Gaza Bakeries Add to ‘Catastrophic’ Food Shortages, THE
GUARDIAN (Oct. 28, 2023), https://www.theguardian.com/global-development/2023/oct/28/airstrikes-on-gazabakeries-add-to-catastrophic-food-shortages.
652
7 WCK Team Members Killed in Gaza, WORLD CENTRAL KITCHEN (Apr. 2, 2024), https://wck.org/news/gazateam-update.
653
Wafaa Shurafa & Samy Magdy, World Central Kitchen Halts Gaza Operations After Israeli Strike Kills 7 Aid
Workers, PBS NEWS HOUR (Apr. 2, 2024), https://www.pbs.org/newshour/world/world-central-kitchen-halts-gazaoperations-after-israeli-strike-kills-7-aid-workers; Press Release, ANERA, ANERA Pauses Gaza Operations Amid
Rising Threats and Attack on WCK (Apr. 2, 2024), https://www.anera.org/press/unprecedented-pause-anerasuspends-gaza-operations-amid-rising-threats/.

82

from committing military acts that “prevent[], through any action,” the delivery ofhumanitarian aid.654
3.f. Analysis: Israel’s acts in and statements about Gaza amount to genocide
187.

Applying the facts in the present case (Sections 3.a, 3.b, and 3.c), Israel’s conduct andstatements meet the definition of genocide (Part 3) under the Genocide Convention.

188.

Its military assault and complete siege on Palestinians in Gaza, and the effects of such
assault and siege, amount to acts of genocide and violate Article II(a), Article II(b), andArticle II(c) of the Genocide Convention.

189.

Israel has violated Article II(a), killing members of the group, by killing at least 34,568
Palestinians in Gaza since October 7, 2023.655 Israel has killed more than 8,485 Palestinians
since the ICJ issued provisional measures on January 26, 2024, which ordered Israel to stop
committing all acts within the scope of Article II.656 The death toll is substantial andmassively disproportionate, in that the vast majority of those killed have been civilians,
with about 70 percent of those killed identified as women and children.657 Following theguidance of the ICJ and criminal tribunals, an objective evaluation of the scale ofdestruction carried out and still ongoing in Gaza is indicative of its genocidal nature.
Furthermore, in Gaza, bombardment is not merely a tactic to instill fear or encourage flight,
as was found in the Galić case; rather, it is killing as such and amounts to an intense andconsistent assault on par with the crime of genocide. For Palestinians in Gaza, leaving is
not an option due to the siege and closure of borders. The purpose of the shelling in Gaza
is to kill Palestinians, not only to encourage their flight, as illustrated by the Israeli
military’s targeting of designated “safe” routes and “safe” regions that were bombed after
the arrival of evacuating Palestinians. These attacks on densely populated areas frequently
make use of unguided, 2,000-pound bombs and other munitions designed to inflictmaximum destruction. This case is thus distinguishable from tactics used to encourage apopulation to flee its territory.

654

S. Afr. v. Isr., Second Provisional Measures Order at paras. 51(2)(a)–(b).
Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA (May 1, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160.
656
Id.; Hostilities in the Gaza Strip and Israel | Flash Update #103, OCHA (Jan. 26, 2024),
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-103.
657
Situation Report #105 on the Situation in the Gaza Strip and the West Bank, Including East Jerusalem, UNRWA(Apr. 30, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-105-situation-gaza-strip-and-westbank-including-east-Jerusalem. See also Press Release, U.N. WOMEN, Two Mothers are Killed in Gaza Every Houras Fighting Exceeds 100 Days (Jan. 19, 2024), https://www.unwomen.org/en/news-stories/pressrelease/2024/01/press-release-two-mothers-are-killed-in-gaza-every-hour-as-fighting-exceeds-100-days; Onslaughtof violence against women and children in Gaza unacceptable: UN experts, U.N. NEWS (May 6, 2024),
https://www.ohchr.org/en/press-releases/2024/05/onslaught-violence-against-women-and-children-gazaunacceptable-un-experts.
655

83

190.

Israel has violated Article II(b), causing serious bodily or mental harm to members of thegroup. Israel has injured 77,765 Palestinians since October 7, 2023.658 Israel’s continued
bombardment and siege on Gaza has also caused serious mental harm to Palestinians inGaza, particularly children. The Israeli military has also committed numerous acts
constituting cruel, inhuman, and degrading treatment against detained Palestinians in Gaza.
Human rights organizations and UN agencies have documented beatings, torture, rape andother forms of sexual violence, and other extreme acts of brutality. Israel has perpetrated
severe harm against the general population through creating the conditions for widespreadstarvation and spread of infectious disease. Furthermore, the mass displacement ofPalestinians from their homes has subjected Palestinians to serious mental harm. Similar
to the facts of Tolimir, the separation of Palestinian families, the degraded living conditions
they face as displaced people, and the loss of hope of ever returning to their homes amounts
to serious mental harm. Israel’s assault on Gaza had a particularly severe impact onchildren. Thousands of children suffer permanent physical disability, the majority ofchildren are suffering from traumatic stress disorders, and the staggering death toll has leftmany children orphaned.

191.

Israel has also violated Article II(c), deliberately inflicting conditions of life calculated tobring about its physical destruction in whole or in part. Israel has forcibly expelled over 85
percent of Palestinians from their homes in Gaza. Israel has deprived Palestinians in Gazaof basic necessities including food and clean water. Due to a lack of clean water and theconditions of sheltering in tents or in dirty, crowded facilities, disease and infection are
widespread. The entire population of Palestinians in Gaza is experiencing or is at imminent
risk of famine. Israel has also deliberately targeted and disabled Gaza’s medical system
while preventing medical supplies from entering Gaza and depriving Palestinians in Gazaof medical care. While all of these conditions threaten the survival of Palestinians currently
in Gaza, Israel has also wrought destruction that threatens the survival of future
generations. Israel has destroyed the majority of homes, destroyed key civilian
infrastructure—including entire city blocks—and completely devastated every level of theeducation system in Gaza. Israel has also destroyed Palestinians’ cultural heritage in Gaza,
preventing the restoration of civil, political, and cultural life. All of these are actions
deliberately inflicted by Israel to bring about conditions of life calculated to result in thephysical destruction in whole or in part of Palestinians in Gaza.

192.

The commission of these prohibited acts by Israel has been accompanied by the requisite
intent.659 Israel’s intent to destroy the Palestinians in Gaza as such can be inferred from thetotality of the circumstances, including the rhetoric of Israeli political and militaryleadership that dehumanizes Palestinians and refers to plans to destroy Gazans, alongsideevidence of Israel’s conduct in Gaza and the political doctrine giving rise to such conduct.

193.

The highest elected officials in Israel’s government have voiced the genocidal intent behind
the Israeli military’s actions on numerous well-publicized occasions. These statements

658

Hostilities in the Gaza Strip and Israel | Flash Update #160, OCHA
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-160.
659
S. Afr. v. Isr., First Provisional Measures Order at para. 45.

(May

1,

2024),

84

have included assertions that all civilians in Gaza were legitimate targets and threats tocompletely flatten Gaza and eradicate Gazan life and culture. Taken together, they indicate
the knowledge and intention of causing widespread death and suffering to Palestinians in
Gaza. Just as the court in Kayishema and Ruzindana considered derogatory language in its
assessment of intent, the statements made by Israeli officials, such as those labelling
Palestinians as “human animals,” attest to Israel’s discriminatory intent towards
Palestinians. These expressions by Israeli officials establish that the assault on Gaza is not
simply a military operation targeting combatants, but an operation intended to destroy the
population.
194.

The systematic nature and scale of the destruction in Gaza provides evidence of Israel’s
genocidal intent. As shown above, Israel has killed civilians using weapons designed tomaximize the death toll in every part of Gaza, even areas designated as “safe.” As in Krstić,
where the court found that the “Bosnian Serb forces could not have failed to know” thatthe “selective destruction” of men in Srebrenica would “have a lasting impact on the entire
group,”660 the Israeli State in this case could not have failed to know that the extent ofkilling and destruction “effectively destroyed the community.” 661 Israel knew or shouldhave known that this level of destruction would amount to destroying the targeted group,in whole or in part. Israel’s attacks on children, its use of highly destructive weapons
against civilians and in densely populated civilian areas, and its frequent targeting ofobservably civilian gatherings such as crowds of people seeking food and aid makes it clearthat Israel treats every Palestinians in Gaza as a legitimate target. Israel has also committed
acts that strongly indicate its intent to destroy the group as such by targeting and destroying
historical and cultural sites, desecrating bodies, and creating and exhuming mass graves.
These attacks have not been reserved for military targets. Overall, the scope and severityof Israel’s destruction of Gaza makes genocidal intent the only reasonable inference todraw from these acts.

195.

Israel’s claim that it is waging a war of self-defense and that its conduct in Gaza negates
an inference of genocidal intent is specious (See Section 3.d). In its conduct of hostilities
in Gaza, the Israeli military has demonstrated a failure to adhere to the principles ofinternational humanitarian law relevant to the protection of civilians—an imperative
condition even if self-defense were warranted.

196.

Finally, an evaluation of Israel’s genocidal intent cannot be separated from Israeli political
doctrine that gives rise to these acts. Israel’s political leaders have made it clear to their
public and to other States that they intend to maintain Israeli control of the occupied
Palestinian territory and preclude the establishment of an independent Palestinian State(See Section 3.b.iii). The massive destruction and killing in Gaza, committed while Israel’s
leadership disavows Palestinian self-determination in Gaza, reasonably leads to theinference that Israel intends to destroy the Palestinians of Gaza.

660
661

Krstić Trial Judgment at para. 598.
Id. at para. 597.

85

197.

The application of the facts shows that Israel’s assault on Palestinians in Gaza amounts toa violation of Article II of the Genocide Convention.

4. Analysis: Israel is committing an act of direct and public incitement of genocide, inviolation of Article III(c) of the Genocide Convention
198.

As noted above, in a public address on October 28, 2023, Prime Minister Netanyahu stated:“You must remember what Amalek has done to you, says our Holy Bible. And we doremember.”662 The Prime Minister’s Office again referred to this phrase in a Post on X on
November 3, 2023.663 The relevant Biblical passage reads: “Now go, attack Amalek, andproscribe all that belongs to him. Spare no one, but kill alike men and women, infants andsucklings, oxen and sheep, camels and asses.”664 Law professor Alan Dershowitz
acknowledges that comparing ethnic groups with Amalek can constitute “incitement tomurder.”665

199.

In Nahimana, the Appeals Chamber held that encouragements to kill Tutsis so that their
population disappears across generations constituted incitement to genocide. 666 Similarly,
in comparing the enemy to Amalek, and in light of the context provided by the relevant
Biblical passage—in particular, the call to kill infants—Prime Minister Netanyahu has
called for the destruction of Palestinians as a group. The Prime Minister, whose statements
are attributable to the State of Israel, has thus publicly and directly incited genocide.

200.

Furthermore, President Herzog stated in a press conference to the media: “It’s an entire
nation out there that is responsible. It’s not true this rhetoric about civilians not aware. It’s
absolutely not true . . . and we will fight until we break their backbone.”667 In Akayesu, theICTR Trial Chamber found the defendant, who “urged the population to unite in order toeliminate the sole enemy”—identified as the entire Tutsi ethnic group—guilty ofincitement of genocide. 668 In Nahimana, predictive statements that use the word “will”
were held to be an implicit call to action. 669 Similarly, the identification of the entire
Palestinian nation as responsible for the Hamas attacks on October 7, 2023, before

662

IsraeliPM, Address by the Prime Minister of Israel, YOUTUBE (Oct. 28, 2023),
https://www.youtube.com/watch?v=lIPkoDk6isc. Translation in Israel-Hamas war: ‘We will fight and we will win’,says Benjamin Netanyahu, SKY NEWS (Oct. 28, 2023).
663
Prime Minister’s Office in Hebrew (@IsraeliPM_heb), X (Nov. 3, 2023, 11:43 AM),https://x.com/IsraeliPM_heb/status/1720406463972004198.
664
Sefaria, I Samuel 15:1-34, JPS, 1985, https://www.sefaria.org/I_Samuel.15.1-34?lang=bi. The message to kill allmen, women, and infants is consistent across versions.
665
ALAN DERSHOWITZ, THE VANISHING AMERICAN JEW: IN SEARCH OF JEWISH IDENTITY FOR THE NEXT CENTURY
225 (1997).
666
Nahimana Appeals Judgment at para. 756.
667
Rageh Omaar, Israeli president Isaac Herzog says Gazans could have risen up to fight ‘evil' Hamas,’ ITV NEWS
(Oct. 13, 2023), https://www.itv.com/news/2023-10-13/israeli-president-says-gazans-could-have-risen-up-to-fighthamas; see also @Sprinter99800 X, https://x.com/Sprinter99800/status/1713064886027063584
668
Akayesu Trial Judgment at para. 673(iii).
669
Nahimana Appeals Judgment at para. 773.

86

subsequently declaring that the State “will break their backbone,” constitutes incitement togenocide.
201.

There is evidence that listeners of these speeches “immediately grasped theimplication[s].”670 On December 7, 2023, a video surfaced of active-duty Israeli military
soldiers chanting phrases that include, “I stick by one Mitzvah [a divine command], to wipe
off the seed of Amalek,”671 directly calling for the killing of Palestinians and their lineages
while echoing Prime Minister Netanyahu’s Biblical reference. The soldiers further chant,“I left home behind me, won’t come back until victory. We know our slogan, there are no‘uninvolved’ civilians.”672 Utilizing President Herzog’s endorsement of the absence of“uninvolved civilians,” the video again shows an intent towards violence against an entire
ethnic group without distinguishing between combatants and civilians, indicating
genocidal incitement. On January 30, 2024, another video by Israeli military soldier Chai
Ben Hamo, filmed in the ruins of Khan Younis, recorded him saying, “We have destroyeda vast territory, killed thousands of [Amalekites]. . . . The rest will fall into place once weunderstand morally that every Arab is a suspicious entity. . . . To be moral is to conquer
and flatten all parts of the land of Israel.” 673 As with the December 7, 2023, video, thereference to Amalek relates to suspicion towards an entire ethnic group and the call to
induce military destruction, indicating genocidal intent.

202.

References to Amalek have proliferated in wider Israeli society. In January and Februaryof 2024, pictures surfaced on social media showing phrases such as “obliterate the memoryof Amalek, don’t forget”674 and “wipe out the memory of Amalek, you shall not forget.”675
These phrases, and others like them, were also displayed on the sides of buses and taxis incities such as Haifa and Tel Aviv. Harbu Darbu [translation: Swords and Strikes], a “hiphop war anthem” that has topped the charts in Israel 676 with over 21 million views on
YouTube,677 calls those “coming and shouting ‘Free Palestine’” the “children of
Amalek.”678

203.

These videos and photographs suggest that statements made by Israeli leaders facilitated,in both the Israeli military and civilian populace, the “state of mind necessary to commit
such a crime in the minds of the person(s) he is so engaging.” 679 The State of Israel, through

670

Akayesu Trial Judgment at para. 558.
Middle East Eye, Israeli soldiers cheering and chanting “to occupy Gaza,” YOUTUBE (Dec. 8, 2023),
https://www.youtube.com/watch?v=qb_oBSAZjDs.
672
Id.
673
Younis Tirawi (@ytirawi), X (Jan. 30, 2024, 5:04 PM),https://x.com/ytirawi/status/1752452789077147808.
674
Tali (@TalulaSha), X (Feb. 4, 2024, 12:44 PM), https://x.com/TalulaSha/status/1754199155151433737.
675
B.M. (@ireallyhateyou), X (Jan. 10, 2024, 9:21 AM), https://x.com/ireallyhateyou/status/1745088385197260808.
676
Gavriel Friske, Hip-hop war anthem reaches number one in Israel, TIMES OF ISR. (Nov. 21, 2023, 10:56 AM),https://www.timesofisrael.com/hip-hop-war-anthem-reaches-number-one-in-israel/.
677
Ness Ve Stilla, ‫ נס‬X ‫ חרבו דרבו‬- ‫( סטילה‬Prod. By Stilla), YOUTUBE (Nov. 14, 2023),
https://www.youtube.com/watch?v=1rk3n9V-aQs.
678
Nessa & Stilla – Harbu Darbu (English Translation), GENIUS (Nov. 14, 2023), https://genius.com/Genius-englishtranslations-ness-and-stilla-harbu-darbu-english-translation-lyrics.
679
Akayesu Trial Judgment at para. 560.
671

87

the speeches of its leaders, has committed the act of direct and public incitement togenocide, in violation of Article III(c) of the Genocide Convention.
5. Analysis: Israel has failed to punish and prevent incitement to genocide
204.

Prominent members of the Israeli press, clergy members, and other notable figures havemade public statements explicitly calling for the complete destruction of Gaza and ofPalestinians in Gaza that echo the genocidal expressions delineated in Section 4 andSection 3.b.i. of this report. Despite its obligations under the Genocide Convention toprevent and punish public and direct incitement to genocide, and the ICJ’s provisional
measures issued on January 26, 2024, requiring the same, Israel has not taken measures to
respond to many of the most blatant instances of incitement to genocide within its society.
The following are a few examples of such incitement:

205.

David Azoulai, Mayor of Metula, said during his appearance on an Israeli radio station:
The whole Gaza Strip needs to be empty. Flattened. Just like in Auschwitz.
Let it be a museum for all the world to see what Israel can do. Let no one
reside in the Gaza Strip for all the world to see, because October 7 was in a
way a second Holocaust. 680
After Poland’s Auschwitz-Birkenau State Museum condemned the statement, Azoulai
clarified to the Times of Israel, “I would like to see Gaza’s population relocated.” 681

206.

Rabbi Shmuel Eliyahu, Chief Rabbi of Safed, wrote in a statement in October 2023:
The Arabs of Gaza have the legal status of Amalek and we are obliged to
execute our obligation to wipe out Amalek in relationship to them . . .
Therefore it is a mitzvah [a divine command] to wage war upon them until
they are totally decimated. It is forbidden to conduct any negotiations forpeace with them. They are the embodiment of evil.682
He continues to write and speak as a Rabbi as of April 2024.683

680

Israel Should Make Gaza Look Like Auschwitz Museum - Council Head, JERUSALEM POST (Dec. 19, 2023),
https://www.jpost.com/israel-hamas-war/article-778367.
681
Canaan Lidor, Israeli Mayor Calls for Turning Gaza into ‘Auschwitz-Like’ Museum, Prompting Rebuke, TIMES OF
ISR. (Dec. 18, 2023), https://www.timesofisrael.com/liveblog_entry/israeli-mayor-calls-for-turning-gaza-intoauschwitz-like-museum-prompting-rebuke.
682(October 2023) ‫“ ישיבה‬,‫”וְ אֹ הֵב חָמָ ס שָ נְאָ ה נַפְ ׁשֹו‬, ‫הרב שמואל אליהו‬, https://www.yeshiva.org.il/midrash/52638, translated
in Herzl Hefter, Hamas Is Evil, but Don’t Be Too Quick to Equate it with Amalek, TIMES OF ISR. (Mar. 13, 2024),
https://blogs.timesofisrael.com/hamas-is-evil-but-dont-be-too-quick-to-equate-it-with-amalek/.
683,(March 12, 2024) ‫“ ישיבה‬,‫ משמעות הלכתית‬- ‫ ”משנכנס אדר מרבים בשמחה‬, ‫הרב שמואל אליהו‬https://www.yeshiva.org.il/midrash/51432;
Rabbi
ShmuelEliyahu(@haravshmuel),
YOUTUBE,https://www.youtube.com/@haravshmuel/videos.

88

207.

Another Rabbi, Rabbi Eliyahu Mali, head of Shirat Moshe Hesder Yeshiva in Yaffa,684 has
similarly referred to religious mandates to kill every Palestinian in Gaza. Mali said in aspeech:The basic law in a religious war, and in this case in Gaza, is that ‘you shallnot leave alive anything that breathes’ (Deuteronomy), and if you do notkill them, they will kill you. Today’s saboteurs are the children in theprevious military operation whom you kept alive and the women are theones who produce the saboteurs . . . It is either you or them. No soul can
live on the basis of: ‘If someone comes to kill you, rise up and kill him first’(Babylonian Talmud). This applies not only to the 14- or 16-year-old boy,or the 20- or 30-year-old man who points a gun at you, but also to the future
generation. This also applies to those who produce the future generation as
well, because in reality there is no difference. 685
When asked about whether his position applied to the elderly in Gaza, he said, “There is adifference between a civilian population elsewhere and a civilian population in Gaza. In
Gaza, according to estimates, 95-98 percent want to annihilate us.”686 When asked aboutchildren, he continued, “It’s the same thing. You can’t embellish with the Torah. Today,
he’s a child, tomorrow he’s a fighter. There are no questions here. Today’s terrorists were8-year-old children in the previous military operation. So, you cannot stop there. Therefore,
the ruling concerning Gaza is different.” 687

208.

Ezra Yachin, a 95-year-old army reservist, released a video clip on social media thatreached two million views that instructed people:
Finish them off and don’t leave anyone behind. Erase the memory of them.
Erase them, their families, mothers and children. These animals can nolonger live . . . Every Jew with a weapon should go out and kill them. If you
have an Arab neighbor, don't wait, go to his home and shoot him . . . We
want to invade, not like before, we want to enter and destroy what’s in frontof us, and destroy houses, then destroy the ones after it. With all of ourforces, complete destruction, enter and destroy . . . Let them drop bombs onthem and erase them.688

684

See About the Yeshiva, HESDER YESHIVA SHIRAT MOSHE, https://www.yafo.org.il/en (last visited Apr. 24, 2024).
Yaffa Rabbi: ‘According to Jewish Law, All Gaza Residents Must Be Killed’, MIDDLE E. MONITOR (Mar. 9, 2024),
https://www.middleeastmonitor.com/20240309-yaffa-rabbi-according-to-jewish-law-all-gaza-residents-must-bekilled/.
686
Id.
687
Id.
688
“These Animals Can No Longer Live” Says Israel’s Oldest Reservist, AL-JAZEERA (Oct. 14, 2023),
https://www.aljazeera.com/program/newsfeed/2023/10/14/these-animals-can-no-longer-live-says-israels-oldestreservist.
685

89

According to Israeli pundit Hananya Naftali, Yachin had been “drafted into the reserves toboost morale by talking with soldiers.”689
209.

Statements inciting genocide have continued to reverberate across Israeli public discourse,
including by legislators, clergy, members of the military, and other officials and figures,with impunity.690 Several members of the Israeli press in particular have made overtly
genocidal public statements, non-comprehensively accounted for below.

210.

Yehuda Schlesinger, an Israeli broadcast journalist, declared during a televised interview
on Channel 12 on October 7, 2023, “there are no innocents” in Gaza. 691 Sharing the clip on
his X account, Schlesinger wrote, “[t]here are no innocents in Gaza. All of Gaza supports
terrorism. All of Gaza is dead. It's time the landlord went crazy.”692 Schlesinger publishedmultiple other posts on X since October 7, 2023, that repeated the claim that there were no
innocents in Gaza,693 including a post in which he stated, “There are no innocents in Gaza.
There are no ordinary citizens in Gaza. Every adult was trained to kill. Every woman is amonster. Every boy aspires to be a martyr[.] Every baby will grow up to be a terrorist.
[W]ipe out, kill, destroy, destroy.”694 During an April 21, 2024, appearance on the Channel
12 program Israel Today, Schlesinger said,
These people there [in Gaza] deserve death, a hard death, an agonizing
death. . . . There are no innocent people there. . . . They are now enjoying
on the beach, instead of starving, being jerked around, instead of being
severely tormented, instead of hiding from shelling. . . . We should haveseen there a lot more revenge, a lot more rivers of Gazans' blood.695

689

Hananya
Naftali(@HananyaNaftali),
X
(Oct.
10,
2023,
11:27
AM),
https://x.com/HananyaNaftali/status/1711765279951171609?lang=en.
690
See, e.g., Law for Palestine Releases Database with 500+ Instances of Israeli Incitement to Genocide –Continuously Updated, LAW FOR PALESTINE (Jan. 4, 2024), https://law4palestine.org/law-for-palestine-releasesdatabase-with-500-instances-of-israeli-incitement-to-genocide-continuously-updated/;
Accountability
Archive(@archivegenocide), X, https://twitter.com/archivegenocide (last visited Apr. 30, 2024); 85 Israeli Genocidal Intent
Quotes, ZIONISM OBSERVER, https://zionism.observer/quotes/genocidal-intent (Last visited May 1, 2024).
691‫שלזינגר‬‫יהודה‬(@judash0),
X
(Oct.
7,
2023,
9:55
PM),
https://x.com/judash0/status/1710881487724204423?lang=en.
692
Id.
693
‫@( יהודה שלזינגר‬judash0), X (Oct. 8, 2023, 7:44 AM), https://x.com/judash0/status/1710984530113241455; ‫שלזינגר‬‫@( יהודה‬judash0), X (Oct. 24, 2023, 1:01 PM), https://x.com/judash0/status/1716862391273529429; ‫יהודה שלזינג‬(@judash0), X (Oct. 28, 2023, 12:06 PM), https://x.com/judash0/status/1718298179353927735; ‫יהודה שלזינגר‬(@judash0), X (Oct. 31, 2023, 4:39 AM), https://x.com/judash0/status/1719272863947985050; ‫יהודה שלזינגר‬(@judash0), X (Nov. 18, 2023, 6:05 PM), https://x.com/judash0/status/1725998656136827335; ‫יהודה שלזינג‬(@judash0), X (Nov. 28, 2023, 11:04 AM), https://twitter.com/judash0/status/1729516714704900318; ‫יהודה שלזינגר‬(@judash0), X (Nov. 28, 2023, 1:52 PM), https://x.com/judash0/status/1729558880600965213; ‫יהודה שלזינגר‬(@judash0), X (Nov. 30, 2023, 12:04 PM), https://x.com/judash0/status/1730256443998126280; ‫יהודה שלזינגר‬(@judash0), X (Dec. 9, 2023, 11:47 PM), https://x.com/judash0/status/1733513613107732579; ‫יהודה שלזינגר‬(@judash0), X (Dec. 14, 2023, 3:36 PM), https://x.com/judash0/status/1735383162572652995.
694‫@( יהודה שלזינגר‬judash0), X (Oct. 24, 2023, 1:01 PM), https://twitter.com/judash0/status/1716862391273529429.
695
MIDDLE EAST EYE, Israeli Journalist: ‘These people deserve a hard agonising death,’ YOUTUBE (Apr. 21, 2024),
https://www.youtube.com/watch?v=_NAhjWphqt4.

90

211.

Prominent Israeli journalist and radio presenter David Mizrahy Verthaim called for turning
Gaza “into a slaughterhouse.”696 He was still actively writing, appearing on radio, andcommenting on social media as of April, including defending his original post.697

212.

Hallel Bitton Rosen, a journalist with Israeli news station Channel 14, posted a Tweet inHebrew stating, “[a]s it is written – ‘Wipe out the memory of Amalek’,”698 anotherreference to the Biblical commandment to exterminate a nation that has been regularly
employed as a rallying cry in Israel’s assault on Gaza (see Section 3.b.i.1). Bitton Rosen
still appeared on Channel 14 broadcasts as of April 24, 2024.699

213.

In late December 2023, a group of Israeli lawyers submitted a letter to the country’s judicial
authorities claiming the attorney general and state prosecutors were ignoring incitement togenocide across Israeli society. They wrote: “For the first time that we can remember, theexplicit calls to commit atrocious crimes, as stated, against millions of civilians have turned
into a legitimate and regular part of Israeli discourse. . . . Today, calls of these types are an
everyday matter in Israel.”700214.

The Israeli Attorney General’s Office issued a statement on January 9, 2024, announcing
her office may examine cases of potential incitement to harm civilians.701 However, theTimes of Israel reported in late February that “[the] Attorney General’s Office has said
nothing since the January comment about progress in prosecuting incitement, while‘examinations’ are not full-blown investigations but rather preliminary proceedings toevaluate if an investigation is necessary.”702 In a letter regarding Israel’s compliance with
the ICJ’s provisional measures, the International Commission of Jurists expressed concern“that Israel has failed so far to initiate full criminal investigations into allegations ofincitement to commit genocide.”703

696

David
MizrahyVerthaim(@dverthaim),
X
(Oct.
7,
2023,
11:52
AM),
https://twitter.com/dverthaim/status/1710684531114602891?s=48.
697‫דוד ורטהיים‬, “‫ ”גם כתבת הניו יורק טיימס שהושעתה בגלל לייק היא קורבן של מכונת רעל‬,‫( דוד ורטהיים‬February 27, 2024),
https://b.walla.co.il/item/3646902; David Mizrahy Verthaim (@dverthaim), X, https://twitter.com/dverthaim (lastvisited Apr. 24, 2024).
698
HallelBittonRosen(@BittonRosen),
X
(Apr.
10,
2024,
7:40
AM),
https://x.com/BittonRosen/status/1778070472082493662.
699
See
14
‫עכשיו‬(@Now14Israel),
X
(Apr.
24,
2024,
10:53
AM),
https://x.com/Now14Israel/status/1783192618886680675.
700
Emma Graham, Harrison and Quique Kierszenbaum, Israeli Public Figures Accuse Judiciary of Ignoring
Incitement
to
Genocide
in
Gaza,
THE
GUARDIAN(Jan.
3,2024),
https://www.theguardian.com/world/2024/jan/03/israeli-public-figures-accuse-judiciary-of-ignoring-incitement-togenocide-in-gaza.
701
Tova Zimuky, Israel Mulls Investigating Lawmakers over Calls to Harm Gazan Civilians, YNET NEWS (Jan. 10,2024), https://www.ynetnews.com/article/h1tnwvjdp.
702
Jeremy Sharon, Report Card: Israel to File Compliance Update to ICJ over Genocide Charges, TIMES OF ISR.
(Feb. 26, 2024), https://www.timesofisrael.com/report-card-israel-to-file-compliance-update-to-icj-over-genocidecharges/.
703
Gaza: One Month On, Israel Fails to Comply with the Order of the International Court of Justice, INT’L COMM’N
OF JURISTS (Feb. 26, 2024), https://www.icj.org/gaza-one-month-on-israel-fails-to-comply-with-the-order-of-theinternational-court-of-justice/.

91

215.

On April 8, 2024, Adalah, the Legal Center for Arab Minority Rights in Israel, submitted
a letter to Israel’s State Attorney, Attorney General, Commissioner of Police, and Ministerof Justice, “demanding an immediate investigation into potential incidents of incitement togenocide perpetrated by various public figures” since October 7, 2023, and deploring thelack of any official investigation into these incidents to date. 704

216.

That none of the abovementioned individuals have faced legal consequences for theirincitements as of this drafting is a strong indication that Israel has failed to discharge its
obligation under the Genocide Convention and the ICJ’s provisional measures to preventand punish incitement to genocide.

PART 5: LEGAL CONSEQUENCES AND OBLIGATIONS FOR THIRD STATES217.

The foregoing analyses lead to the conclusion that Israel is violating the international legal
prohibition of genocide against the Palestinian people in Gaza. Strong evidence indicatesthat Israel is violating Article II(a) (the killing of Palestinians in Gaza), II(b) (the causingof serious bodily or mental harm to Palestinians in Gaza), and II(c) (the deliberate inflictionof conditions of life calculated to bring about the destruction of Palestinians in Gaza) of
the Genocide Convention, all with the requisite genocidal intent. Evidence also indicatesthat Israel is in violation of Article III of the Genocide Convention, by inciting to genocide,
failing to prevent genocide, and failing to punish those responsible in the Israeli
government, press, and others who are likewise inciting genocide.

218.

The prohibition of genocide in the Genocide Convention and in customary internationallaw is a peremptory norm (jus cogens),705 serious breaches of which generate obligations
for both the responsible State as well as all other States, known as obligations ergaomnes.706 The ICJ has affirmed that erga omnes obligations are the “concern of all
States”707 and that “all States can be held to have a legal interest in their protection.” 708

704

Letter, Adalah, Letter Demanding Israel Investigate and Prosecute Incitement to Genocide by Public Figures (Apr.
8, 2024), available in Hebrew at https://www.adalah.org/uploads/uploads/incitement_genocide_080424.pdf.
705
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23 (May 28). See also Dem. Rep. Congo v. Uganda at para. 64; Bosn. & Herz. v. Yugoslavia
Preliminary Objections Judgment at para. 31.
706
Bosn. & Herz. v. Yugoslavia Preliminary Objections Judgment at para. 31; Dem. Rep. Congo v. Uganda at para.
64; ILC, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, art. 40., U.N.
Doc. A/56/10 (2001), https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf [hereinafter
ARSIWA]. Article 40(2) of ARSIWA defines a serious breach of jus cogens norms as “a gross or systematic failure
by the responsible State to fulfil the obligation.” See also ARSIWA, art. 40, cmt. 8.
707
Barcelona Traction at para. 33, affirmed by the court in the Wall Advisory Opinion at para. 155.
708
Id. In the Chagos Advisory Opinion, the court stated that “all States have a legal interest in protecting” an ergaomnes right. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, 2019 I.C.J. 95, para. 180 (Feb. 25). The ILC Commentary on ARSIWA describes the concept of erga omnes
obligations as addressing “the legal interest of all States in compliance – i.e., . . . in being entitled to invoke theresponsibility of any State in breach.” ARSIWA, art. 39, cmt. 7.

92

219.

The Genocide Convention also creates obligations for all States parties to the Convention,
obligations era omnes partes, as “all the States parties to the Genocide Convention have acommon interest to ensure that acts of genocide are prevented.” 709 Namely, all States
parties to the Convention have duties to prevent and punish genocide and to not becomplicit in the commission of genocide. 710

220.

As duty holders under international law, all States are responsible for making individual
assessments of whether a violation of the prohibition of genocide has occurred for the
purpose of determining their own duties, and no determination by international courts ortribunals is necessary in order to trigger these duties. 711

221.

On January 26, 2024, the ICJ issued a provisional measures order recognizing as plausible“the right of Palestinians in Gaza to be protected from acts of genocide and related
prohibited acts identified in Article III [of the Genocide Convention], and the right of South
Africa to seek Israel’s compliance with the latter’s obligations under the Convention.”712
The Court ordered Israel to take “all measures within its power to prevent the commissionof all acts within the scope of Article II of [the] Convention,” and “to prevent and punish
the direct and public incitement to commit genocide in relation to members of thePalestinian group in the Gaza Strip.”713 The Court emphasized the urgency to take thesemeasures and the “real and imminent risk” of irreparable harm to the rights of Palestinians
in Gaza under if no measures were taken,714 “namely the right . . . to be protected from actsof genocide and related prohibited acts.”715 This determination by the UN’s highest judicialorgan has the effect of alerting all third States to the aforementioned risks, most grave of
which is the imminent risk that Palestinians may be subjected to genocidal acts within thescope of Article II of the Genocide Convention. States, therefore, must assess their duties
and obligations in light of these risks.716

222.

In relation to the above, legal consequences to third States 717 may comprise duties to refrainfrom certain actions, duties to undertake certain actions, as well as rights to invoke certain
responsibilities before international tribunals. Section 6 below outlines the broad duties
and obligations of third States generated under customary international law, and Section 7709

Gamb. v. Myan. Provisional Measures Order at para. 41.
Genocide Convention, arts. I, III(e).
711
See Bosn. & Herz. v. Serb. & Montenegro at para. 431. See also Ralph Wilde, Legal Consequences for Third Statesof Israel’s Potential Breaches of the Genocide Convention in the Light of the ICJ’s Provisional Measures Orders in
the South Africa v Israel Case - Legal Opinion for the Arab Organisation for Human Rights in the UK (Apr. 22, 2024),
https://aohr.org.uk/wp-content/uploads/2024/04/Wilde-Gaza-genocide-third-states-opinion.pdf, p. 19, paras. 29-30[hereinafter Wilde, Legal Opinion 2024].
712
S. Afr. v. Isr., First Provisional Measures Order at para. 54.
713
Id. at paras. 78-79.
714
Id. at para. 61
715
Id. at para. 66.
716
See Wilde, Legal Opinion 2024 at p. 20, para. 32 (arguing that “[t]he effect of the ICJ’s determination is that
States must proceed on the basis of a working assumption that Israel is violating the genocide obligations, and there
is a risk that these violations will continue, and other violations will arise, and that the rights and obligations they
have in consequence, which will be elaborated on below, are engaged”).
717“Third States” refers to any State party to the Genocide Convention other than Israel and Palestine.
710

93

follows with an emphasis on specific duties and obligations that arise from the Genocide
Convention as a result of a determination that Israel has violated the prohibition on
genocide. Section 8 discusses the right of third States to invoke responsibilities triggeredby Israel’s violations of erga omnes and erga omnes partes obligations.
6. Duties of third States generated as a result of Israel’s violations of its obligations under
the Genocide Convention
223.

Violation by any State of a peremptory (jus cogens) norm of international law, including
the prohibition of genocide, triggers obligations under customary international law for all
third States to (1) refrain from recognizing as lawful “a situation created by a serious
breach; (2) not “render aid or assistance in maintaining” the situation created by a breach;and (3) “cooperate to bring to an end through lawful means any serious breach” of therelevant peremptory norm.718

224.

As discussed above, the totality of Israel’s conduct of military operations in Gaza violates
the prohibition of genocide under international law, which bears jus cogens and erga omnes
status,719 in addition to violating international humanitarian law. The gravity and scale ofIsrael’s violations (see Sections 3.a and 3.d.ii), and clear expressions of the genocidal intent
of its use of force in Gaza (see Section 3.b) render it practically impossible to separate thegenocidal elements of Israel’s military operations from elements that are non-genocidal,
for purposes of assessing the legality of specific parts of Israel’s military operations in
Gaza. It follows, therefore, that States have a duty to refrain from recognizing as lawful allof Israel’s military operations in Gaza (Section 6.a) and from rendering any aid orassistance to Israel in its conduct of military operations in Gaza (Section 6.b). Furthermore,States have a positive duty to cooperate to bring to an end Israel’s military operations in
Gaza (Section 6.c).

6.a. Duty of non-recognition
225.

All States have an obligation not to recognize Israel’s violations of the prohibition of
genocide resulting from its ongoing military operations in Gaza. 720 This duty of nonrecognition is enshrined in the jurisprudence of international tribunals, 721 as well as
expressed in multiple UN Security Council resolutions affirming that serious breaches have“no legal validity, and are considered null and void.”722 These sources affirm that

718

ARSIWA, art. 41.
Barcelona Traction at para. 34.
720
See Wilde, Legal Opinion 2024 at pp.14-18, paras. 11-25 (for analysis of the legality of Israel’s use of force inGaza in light of the ICJ’s provisional measures of January 26 and March 28).
721
The ICJ held in the Namibia Advisory Opinion Court that “the termination of the Mandate and the declaration of
the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes thelegality of a situation which is maintained in violation of international law” (Legal Consequences for States of theContinued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution
276, para. 126, 1971 I.C.J. 16 (June 21), [hereinafter Namibia Advisory Opinion]).
722
S.C. Res. 662 (Aug. 9, 1990); S.C. Res. 216 (Nov. 12, 1965); G.A. Res. 31/6 A (Oct. 26, 1976), endorsed in S.C.
Res. 402 (Dec. 22, 1976).
719

94

“collective non-recognition . . . marks the minimum necessary response by States” toserious breaches.723
226.

In the Wall Advisory Opinion of 2004, the ICJ held that all States are under an obligation
to not recognize the illegal situation arising from Israel’s jus cogens violations in the
Occupied Palestinian Territory and to not render aid or assistance in maintaining thatsituation.724 The ICC has further held that “as a general principle of law, there is a duty not
to recognize situations created by certain serious breaches of international law” 725 Thisobligation of non-recognition “not only refers to the formal recognition of these situations,but also prohibits acts which would imply such recognition.” 726

227.

In the Namibia Advisory Opinion, the ICJ held in 1971 that South Africa’s illegal presence
in Namibia created an obligation on the part of all States “to recognize the illegality andinvalidity of South Africa’s continued presence,”727 and further held that States were
obligated to “make it clear to the South African authorities that the maintenance ofdiplomatic or consular relations with South Africa does not imply any recognition of its
authority with regard to Namibia.”728 Following the Advisory Opinion, the Security
Council passed Resolution 301, which called on States “to refrain from any acts and inparticular any dealings with the Government of South Africa implying recognition of thelegality of, or lending support or assistance to, such presence and administration.”729

228.

Similarly, in 1990, the Security Council, after having declared the illegality of Iraq’s
annexation of Kuwait, called upon “all States, international organizations and specialized
agencies to not recognize that annexation, and to refrain from any action or dealing thatmight be interpreted as an indirect recognition of the annexation.” 730

229.

Under this precedent, States are under an obligation to not recognize Israel’s military
operations in Gaza as lawful. In particular, they may not invoke or adopt any justification—
including that of self-defense—to justify Israel’s conduct in Gaza. As in the Namibia case,the duty of non-recognition of Israel’s conduct in Gaza further extends to refraining fromany acts or dealings with the Government of Israel that may imply recognition of thelegality of its conduct.

723

ARSIWA, art. 41, cmt. 8.
Wall Advisory Opinion at paras. 146, 159. See also Namibia Advisory Opinion at para. 199.
725
The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-1707, Second decision on the Defence’s challenge to thejurisdiction of the Court in respect of Counts 6 and 9, of January 2017, Trial Chamber VI, I.C.C., para. 53.
726
ARSIWA, art. 41, cmt. 5.
727
Namibia Advisory Opinion at para. 119.
728
Id. at para. 123 (referring to the duty of non-recognition imposed by Security Council Resolution 276 of 1970,
paras. 2, 5).
729
S.C. Res. 301, para. 6(2) (Oct. 20, 1971). See also S.C. Res. 283, para.1 (July 29, 1970) (requesting all states “torefrain from any relations—diplomatic, consular or otherwise—with South Africa implying recognition of theauthority of the Government of South Africa over the Territory of Namibia”).
730
S.C. Res. 662, paras. 1-2 (Aug. 9, 1990).
724

95

6.b. Duty to refrain from aiding or assisting violations of the prohibition of genocide
230.

States may not provide aid or assistance to Israel in its violation of the prohibition of
genocide. This duty was affirmed by the ICJ in the Wall Advisory Opinion, which declaredthat all States are under an obligation “not to render aid and assistance in maintaining thesituation” created by violations of erga omnes norms of international law.731 In the Namibia
Advisory Opinion, the ICJ likewise declared that States are “under obligation to refrainfrom lending any support or any form of assistance to South Africa with reference to its
occupation of Namibia.”732 A third State need not intend that its aid contribute to such
violations in order for the State to be required to cease such assistance.733

231.

Multiple UN General Assembly and Security Council resolutions have addressed the scopeof the duty not to aid or assist in cases of violations of different erga omnes obligations.
For example, in 1975, the General Assembly, in Resolution 2414, called on all States to“desist from supplying Israel with any military or economic aid as long as it continues to
occupy Arab territories and deny the inalienable national rights of the Palestinian
people,”734 and again reiterated this call in subsequent resolutions in 1981735 and 1983.736
In Resolution 36/226A of 1981, the General Assembly called on States “to put an end to
the flow to Israel of any military, economic, and financial resources that would encourage
it to pursue its aggressive policies against the Arab countries and the Palestinian people,”737
and later affirmed the call for these measures in 1983 and further instructed States to review“any agreement, whether military, economic or otherwise, concluded with Israel.”738

232.

In Nicaragua v. Germany, a 2024 case in which Nicaragua has challenged Germany’stransfer of weaponry to Israel as a violation of the Genocide Convention, the ICJ
emphasized that it was “particularly important to remind all States of their international
obligations relating to the transfer of arms” to avoid the risk of States’ violating theirinternational obligations, including those under the Genocide Convention. 739

233.

States have a duty to not render aid or assistance in maintaining Israel’s breaches of theprohibition on the crimes of genocide against Palestinians in Gaza. This encompasses a
duty to refrain from providing aid or assistance to Israel’s military operations in Gaza,

731

Wall Advisory Opinion at paras. 155, 159.
Namibia Advisory Opinion at para. 119.
733
See Separate Opinion of Judge Higgins, Wall Advisory Opinion, para. 38 (observing it to be “self-evident” thatthird parties may not assist an illegal situation).
734
G.A. Res. 3414 (XXX), para. 3 (Dec. 5, 1975).
735
G.A. Res. 36/27, para. 3 (Nov. 13, 1981) (reiterating the “call to all States to cease forthwith any provision to Israelof arms and related material of all types which enable it to commit acts of aggression against other States”).
736
G.A. Res. 38/180A, para 13(a) (Dec. 19, 1930) (calling all Member States “[t]o refrain from supplying Israel withany weapons and related equipment and to suspend any military assistance that Israel receives from them”).
737
G.A. Res. 36/226A, para. 13 (Dec. 17, 1981).
738
G.A. Res. 38/180E, paras. 4 (Dec. 19, 1983).
739
Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory (Nicar. v.
Ger.), Request for Provisional Measures, Order, I.C.J. Apr. 30, 2024, para. 24 [hereinafter Nicar. v. Ger., Provisional
Measures Order].
732

96

including though diplomatic and political support, as well as financial, logistical, or
military aid that may contribute to the continuation of these operations.740
6.c. Positive duty to cooperate through lawful means to end violations of the prohibition of
genocide234.

As discussed above, the prohibition of genocide is a jus cogens norm of international law,of which “serious breaches”741 trigger a positive duty for all other States to cooperate tobring it to an end through “lawful means.”742 States may take a wide variety of cooperative
measures, through institutionalized mechanisms such as the UN, as well as noninstitutionalized cooperative mechanisms, to end the serious breach. 743 The duty tocooperate to bring an end to a serious breach is an obligation erga omnes, that is, it “applies
to States whether or not they are individually affected by the serious breach.”744 As a matterof customary international law, in response to a breach, any State may “take lawful
measures against [another] State to ensure cessation of the breach and reparation” to theinjured State.745

235.

The duty to cooperate to bring to an end Israel’s genocidal acts in Gaza may take multiple
forms, including institutionalized cooperation through the UN and its major organs. For
example, in the context of concerted State action against South Africa’s apartheid regime,
the General Assembly issued multiple resolutions calling for an end to cultural,
educational, and sporting exchanges 746 and oil and arms supplies to South Africa.747
Similarly, the Security Council issued several resolutions calling upon States to cease
shipment of military items,748 to not recognize illegitimate elections,749 and to declare nulland void South Africa’s apartheid constitution as contrary to the UN Charter.750 Outside of
institutionalized cooperation, States may also cooperate to deploy a range of “lawfulmeans” to cease serious breaches of international law, which States may determine
depending on the particular context.751

236.

In the present case, States are obligated to cooperate to bring to an end Israel’s genocidal
actions against Palestinians in Gaza. In particular, member States of the UN Security
Council have a duty to cooperate to issue a resolution calling for a permanent ceasefire in

740

See ARSIWA, art. 41.
See ARSIWA, art. 40 and its commentary for a definition of serious breaches.
742
ARSIWA, art. 41; ARSIWA art. 41, cmt. 2.
743
ARSIWA, art. 41, cmt. 2; ILC, Draft conclusions on identification and legal consequences of preemptory normsof general international law (jus cogens), with commentaries, Conclusion 19, cmt. 10, U.N. Doc. A/77/10 (2022).
744
ARSIWA, art. 41, cmt. 3.
745
ARSIWA, art. 54.
746
G.A. Res. 2396 (XXIII), para. 12 (Dec. 2, 1968).
747
G.A. Res. 1899 (XVIII), para. 7 (Nov. 13, 1963).
748
S.C. Res. 181, para. 3 (Aug. 7, 1963).
749
S.C. Res. 554, para. 5 (Aug. 17, 1984).
750
Id. at para. 1.
751
ARSIWA, art. 41, cmts. 2-3.
741

97

Gaza. States may also cooperate to deploy additional appropriate countermeasures,752 suchas economic sanctions, withholding military assistance, travel bans, or other methods
aimed at preventing their citizens and corporate actors from participating in or contributing
to Israel’s military campaign in Gaza. 753
237.

Whether States may enact economic sanctions as third-party countermeasures is a matterthat the ILC has left for further development in international law. 754 Since the publicationof ARSIWA, state practice has proliferated in the form of unilateral sanctions (against bothStates and specific individuals) that respond to grave breaches of international law. 755 For
example, the United States and European Union instituted asset freezes against high-level
officials in Myanmar in response to human rights violations committed against the
Rohingya in 2018.756 More recently, various States have enacted sanctions against theRussian Federation for its invasion of Ukraine, including the United States, the European
Union (EU) (and individual EU Member States), Australia, Japan, New Zealand,
Singapore, South Korea, and Switzerland.757

7. Legal consequences and obligations of States under the Genocide Convention
238.

The Genocide Convention provides an additional basis that underscores duties andobligations of third States, which have erga omnes character, meaning that all States parties
to the Genocide Convention share a legitimate interest in ensuring the compliance of otherState parties with the Convention. This legitimate interest was affirmed by the ICJ in theGambia v. Myanmar case, holding that States parties have a “common interest to ensurethat acts of genocide are prevented and that, if they occur, their authors do not enjoy
impunity.”758 The Convention enumerates two broad duties for State parties: first, all States
have a duty to “prevent and punish” genocide under Article I of the Convention; andsecond, third States have a duty under Article III(e) to refrain from complicity in genocide.

7.a. The duty under the Genocide Convention to prevent and punish genocide
239.

All States parties to the Genocide Convention have a duty to prevent and punish breachesof the Convention.759 This duty under Article I of the Convention “imposes positive
obligations on State parties to take action or ‘to do their best to ensure that such acts do not

752

Countermeasures are defined as non-forcible measures that would ordinarily be considered wrongful, but theirwrongfulness is precluded only in relation to their use by a State against another State in response to a previous
international wrongful act. See ARSIWA, art. 22 and its commentary.
753
See ARSIWA, art. 54, cmt. 3.
754
ARSIWA, art. 54, cmt. 6.
755
Amanda Bills, The Relationship between Third-Party Countermeasures and the Security Council’s Chapter VII
Powers: Enforcing Obligations erga omnes in International Law, 89 NORD. J. INT’L L. 117, 127–28 (2020). See
generally MARTIN DAWIDOWICZ, THIRD-PARTY COUNTERMEASURES IN INTERNATIONAL LAW (2017).
756
Id.
757
Sanctions Against Russia – a Timeline, S&P GLOBAL MARKET INTELLIGENCE (Mar. 26, 2024),
https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/sanctions-against-russia-8211a-timeline-69602559.
758
Gamb. v. Myan. Provisional Measures Order at para. 41.
759
Genocide Convention, art. I.

98occur.’”760 A State is in violation of this obligation if it “manifestly failed to take allmeasures to prevent genocide which were within its power and which might havecontributed to preventing the genocide.”761 In Bosnia and Herzegovina v. Serbia andMontenegro, the ICJ explained that the obligation to prevent and punish genocide and the
duty to discharge this obligation “arise at the instant that the State learns of, or should
normally have learned of, the existence of a serious risk that genocide will becommitted.”762 The Court affirmed that States are obligated “to employ all means
reasonably available to them, so as to prevent genocide so far as possible.” 763
7.a.i. The obligation to prevent and punish genocide is not territorially limited
240.

All States parties to the Genocide Convention have a duty to prevent and punish violations
by all other States of their obligations under the Convention. 764 The Convention does not
impose territorial limits, but rather emphasizes the importance of international cooperation“in order to liberate mankind from such an odious scourge.”765

241.

The ICJ underscored in Bosnia and Herzegovina v. Serbia and Montenegro that States havea duty to prevent genocide, writing that the “obligation to prevent the commission of thecrime of genocide is imposed by the Genocide Convention on any State party which, in agiven situation, has in its power to contribute to restraining in any degree the commissionof genocide.”766 In this way, the “combined efforts of several States, each complying with
its obligation to prevent,” could avert the commission of genocide when one State’s efforts
alone are insufficient.767

7.a.ii. At this time, third States have sufficient knowledge of a serious risk of genocide in Gaza,
triggering their duty to prevent genocide
242.

The duty to prevent genocide is triggered “at the instant that the State learns of, or should
normally have learned of, the existence of a serious risk that Genocide will becommitted.”768 As the ICJ held in Bosnia and Herzegovina v. Serbia and Montenegro, theactual or constructive knowledge of the risk of genocide can be established by evidence
that State officials were directly informed of the risk of genocide, 769 statements by State
officials acknowledging allegations of genocide, 770 “international concern about what

760

See Nicar. v. Ger., Provisional Measures, Declaration of Judge Cleveland, para. 5 [quoting Bosn. & Herz. v. Serb.
& Montenegro at para. 432].
761
Bosn. & Herz. v. Serb. & Montenegro at para. 430.
762
Id at para. 431.
763
Id. at para. 430.
764
Genocide Convention, art. I.
765
Genocide Convention, Preamble. In the preliminary objections phase of Bosnia and Herzegovina v. Serbia andMontenegro, the ICJ confirmed that the duty to prevent and punish genocide “is not territorially limited.” Bosn. &Herz. v. Serb. & Montenegro Preliminary Objections Judgment at para. 31.
766
Bosn. & Herz. v. Serb. & Montenegro at para. 461.
767
Id. at para. 430.
768
Id. at para. 431.
769
Id. at paras. 436–37.
770
Id. at para. 438.

99

looked likely to happen” in the relevant territory (including through the ICJ’s own
determinations),771 or the knowledge that there was a “climate of deep-seated hatred”772
between different ethnic groups. These would establish that a State “could not have been
unaware” of the risk that genocide is likely to occur. 773
243.

The plausibility of the imminent risk that Israel is violating the right of Palestinians in Gaza
to be protected from genocide and other provisions of the Genocide Convention, and theurgency to take measures to protect these rights, have been recognized by the ICJ in theprovisional measures orders it issued in the case brought by South Africa concerning
Israel’s violation of the Genocide Convention.774

244.

Since mid-October 2023, numerous authoritative international law experts, UN Special
Rapporteurs and mechanisms, high UN officials, leading scholars and practitioners ofinternational law and genocide studies, and credible human rights advocacy organizations
have issued repeated warnings and declarations to alert the international community of therisk—or the actual unfolding—of genocide against the Palestinian people in Gaza. 775

245.

Moreover, pronouncements by State officials, such as those from the United States, 776
demonstrate that third States have been put on notice regarding concerns of genocide.777
As the ICJ held in Bosnia and Herzegovina v. Serbia and Montenegro, the fact that officials
had “information, voicing serious concern, in their possession” demonstrates
knowledge.778 Even if there was “no certainty . . . that genocide was about to be committed
or was under way,” their awareness of serious risk triggers the applicability of the duty toprevent genocide.779

246.

It therefore can be established that at this time, all States parties to the Genocide
Convention have learned, or should have learned, of the grave risks that through its actions
in Gaza, Israel has violated, and continues to violate, its obligations under the Genocide
Convention in Gaza, thereby triggering the duty to prevent and punish genocide.

771

Id.
Id.
773
Id. at para. 461.
774
S. Afr. v. Isr., First Provisional Measures Order at para. 54; S. Afr. v. Isr., Second Provisional Measures Order atpara. 27.
775
See the Introduction of this report for a thorough list of examples of statements warning of and condemning the
genocidal nature of Israel’s acts in Gaza.
776
Daphne Psaledakis & Simon Lewis, US ‘Not Seeing Acts of Genocide’ in Gaza, State Dept Says, REUTERS (Jan. 3,2024, 3:34 PM), https://www.reuters.com/world/us-not-seeing-acts-genocide-gaza-state-dept-says-2024-01-03/;
Simon Lewis, Doina Chiacu & David Brunnstrom, Blinken Says Daily Toll in Gaza too High, Israel Genocide Charge
Meritless, REUTERS (Jan. 9, 2024, 6:06PM EST), https://www.reuters.com/world/middle-east/blinken-says-daily-tollgaza-too-high-israel-genocide-charge-meritless-2024-01-09/.
777
See S. Afr. v. Isr., First Provisional Measures Order at para. 54.
778
Bosn. & Herz. v. Serb. & Montenegro at para. 438.
779
Id. at para. 432.
772

100

7.a.iii. The duty to prevent genocide varies in accordance with its political capacity to influence
the party committing genocide
247.

States are required to “employ all means reasonably available” to them to prevent
genocide.780 The duty to prevent genocide “varies greatly from one State to another,” anddepends on a given State’s “capacity to influence effectively the action of persons likely tocommit, or already committing, genocide.”781

248.

Several factors can determine the capacity of a third State to exert influence, including “thegeographical distance of the State concerned from the scene of the events” and “the strengthof the political links, as well as links of all other kinds, between the authorities of the Stateand the main actors in the events.”782 States that provide military support to a perpetrating
State have a higher duty to prevent genocide from occurring. 783

249.

In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ held that the Federal
Republic of Yugoslavia (FRY) had unique influence over Bosnian Serbs, who committed
genocide in Srebrenica, “owing to the strength of the political, military and financial links
between the FRY on the one hand and the Republika Srpska and the VRS on the other.”784
Forty-two percent of ammunition used by the VRS military was inherited from the former
Yugoslav Army.785 The former Yugoslav Army continued to supply 47 percent of VRS
military “requirements”;786 and the Yugoslav government gave enough “financial support”
to the extent that, had it withdrawn its support, it “would have greatly constrained theoptions that were available to the Republika Srpska authorities.” 787 Given these links,
Yugoslavia had the obligation to make “the best efforts within their power to try andprevent” the commission of genocide in Srebrenica. 788

250.

The ICJ also emphasized that acts of omission violated the duty to prevent under Article
I.789 In other words, a State is in violation of the Genocide Convention if it fails to act after
having learned of the risk of another State’s violation of its Convention obligations. In
relation to arms exports and military assistance, in particular, “all States parties have aninternational legal obligation to exercise due diligence,” as emphasized in the separate
declaration of Judge Cleveland in Nicaragua v. Germany.790

251.

In the present case, the duty to prevent genocide in Gaza encompasses a range of measures.
First, it is imperative that States exercise all means of political and diplomatic pressure
towards the cessation of Israeli military operations in Gaza. States exporting arms or780

Id. at para. 430.
Id.
782
Id.
783
Id. at para. 438.
784
Id. at para. 434. “VRS” was the Bosnian Serb Army of Republika Srpska.
785
Bosn. & Herz. v. Serb. & Montenegro at para. 239.
786
Id.
787
Id. at para. 241.
788
Id. at para. 438.
789
Id. at para. 432.
790
See Nicar. v. Ger., Provisional Measures, Declaration of Judge Cleveland at para. 16.
781

101

military equipment to Israel, or providing other forms of military aid or logisticalassistance, which contribute to or otherwise enable Israel’s military operations against
Palestinians in Gaza, have an obligation to immediately terminate all forms of aid andassistance. Failure to take measures to cease such aid or assistance may constitute a
violation of a State’s obligation under Article I of the Genocide Convention.
252.

States also have the duty to punish violations of the Genocide Convention, including
through assisting and enabling the assignment of individual criminal responsibility for
genocide.791 States must cooperate in good faith to investigate, prosecute, or extradite
suspects, and States parties to the Rome Statute must work towards enabling theprosecution of suspects in the International Criminal Court.792

7.b. The duty not to be complicit in genocide
253.

Article III(e) of the Genocide Convention prohibits complicity in genocide.793 Complicity
can only exist where the crime of genocide has been committed. 794

254.

In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ noted that “complicity”
under the Genocide Convention is analogous to the notion of “aid or assistance” incommitting an internationally wrongful act under customary international law.795 Hence, aState has violated Article III when the conditions of Article 16 of ARSIWA are met, i.e.,
when the State provides aid or assistance in a manner that contributes directly andsubstantially to the commission of the crime, “with knowledge of the circumstances of theinternationally wrongful act.”796

255.

A violation of the prohibition of complicity in genocide does not require that the assistancehave a “causal relationship”797 with or be “indispensable”798 to the commission of thecrime. Rather, it suffices that the assistance had a “substantial effect on the commission of
the crime.”799 Moreover, “moral support” (for example, encouragement) can constitutecomplicity if it has a “significant legitimising or encouraging effect” on the persons orStates committing genocide.800

791

See Wilde, Legal Opinion 2024 at pp. 31-32, paras. 71-74, https://aohr.org.uk/wp-content/uploads/2024/04/WildeGaza-genocide-third-states-opinion.pdf.
792
See Rome Statute, art. 6.
793
Genocide Convention, art. III(e).
794
Akayesu Trial Judgment at para. 529.
795
Bosn. & Herz. v. Serb. & Montenegro at para. 419.
796
ARSIWA, art. 16.
797
Prosecutor v. Furundžija, IT-95-17/1, Trial Judgment (I.C.T.Y. Dec. 10, 1998), para. 233 [hereinafter Furundžija
Trial Judgment].
798
Gerechtof’s-Hertogenbosch,
21-04-2017,
ECLI:NL:GHSHE:2017:2650
13-06-2017(Public
Prosecutor/Kouwenhoven), at L.2, https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:GHSHE:2017:2650.
[hereinafter Kouwenhoven].
799
Furundžija Trial Judgment at para. 234; Prosecutor v. Édouard Karemera et al., ICTR-98-44-A, Appeals Judgment(I.C.T.R. Sept. 29, 2014), para. 489.
800
Furundžija Trial Judgment at para. 232.

102

256.

International criminal tribunals have held that complicity can comprise various kinds ofacts, including aiding and abetting. 801 The provision of weapons has been held to constitutecomplicity. In Akayesu, the ICTR Trial Chamber held that the “procuring [of] means, suchas weapons, instruments, or any other means” satisfies the actus reus (or act requirement)of complicity.802 In the Zyklon B case, the British military court convicted of aiding andabetting defendants who, through their businesses, supplied poison gas into Germany
knowing that it was to be used in extermination camps.803 The ICJ further clarified that actsof complicity may include the “provision of means to enable or facilitate the commissionof the crime.”804

257.

A specific intent to commit genocide is not required for a finding of complicity; rather, it
is sufficient for a State to act with the knowledge that the direct perpetrator had the specificintent to commit genocide, as affirmed by the ICJ in Bosnia and Herzegovina v. Serbia andMontenegro.805 The District Court in the Hague, which adjudicated a case involving theapplication of a Dutch statute implementing the Genocide Convention, held that a findingof complicity requires knowledge of “the genocidal intention of the perpetrator” rather thanspecific genocidal intent of the accomplice. 806 The Trial Chamber in Akayesu and the
Appeals Chamber in Ntakirutimana noted that complicity does not require that theperpetrator share the same specific intent, 807 only that the accomplice must have known of
the genocidal plan and that the assistance would help in the commission of the act. 808

258.

Knowledge of the direct perpetrator’s genocidal intention can be established throughcircumstantial evidence. For example, the British Military Court in Zyklon B held that one
defendant, Weinbacher, had knowledge of the genocidal plan even in the absence of direct
evidence that he knew how the Zyklon B was being used at Auschwitz. 809 In light of thescrupulousness and level of sensitivity with which Weinbacher ran their poison gas
business, the court found that he “must have known every little thing about his business,”
including that his chemicals were being used to exterminate Jews in Auschwitz. 810 In Van

Akayesu Trial Judgment at para. 533; Kristić Appeals Judgment at paras. 138–39; Prosecutor v. E. and G.
Ntakirutimana, Cases Nos. ICTR-96-10-A & ICTR-96-17-A, Appeals Judgment (I.C.T.R. Dec. 13, 2004), para. 371[hereinafter Ntakirutimana Appeals Judgment]. See also Marko Milanović, State Responsibility for Genocide, 17 EUR.
J. INT’L L. 553, 574 (2006); WILLIAM SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES 293(2000).
802
Akayesu Trial Judgment at para. 537.
803
United Kingdom v. Tesch et al., Case No. 9, Judgment, British Military Court in Hamburg, 1 L. Rep. Trial War
Crim. 93, 101–102 (1947) [hereinafter Zyklon B case].
804
Bosn. & Herz. v. Serb. & Montenegro at para. 419.
805
Id. at para. 421.
806
Rechtbank’s-Gravenhage, 23-12-2005, 31-05-2006 (Public Prosecutor/Frans Cornelis Adrianus van Anraat), para.
6.5.1 (Neth.), trans. Asser Institute, Ctr. for Int’l & Eur. L.,
https://www.asser.nl/upload/documents/DomCLIC/Docs/NLP/Netherlands/vanAnraat_Judgment_23-122005_EN.pdf [hereinafter Van Anraat]. See also Kouwenhoven at L.2 (holding that, “from an international criminallaw perspective, the requirements for the ‘aider or abettor’ are not significantly heavier or different”).
807
Akayesu Trial Judgment at para 485.
808
Id. at para. 538; Ntakirutimana Appeals Judgment at para 364.
809
Zyklon B. Case at 101.
810
Id.
801

103

Anraat, the Hague district court emphasized that a defendant could be put on notice of the
genocidal plan through “extensive coverage in international media” of genocidal acts. 811
Only because such news reports occurred after the defendant conducted the arms sale did
the Court find him not guilty of complicity in genocide.812
259.

As discussed above (see Section 7.a.ii), it can be established at this time that States have,or should reasonably have, knowledge of plausible Israeli violations of the Genocide
Convention in Gaza. This triggers their obligations to cease any actions—whether military,logistical, financial, political, or diplomatic—that aid or abet Israel’s commission of
genocidal actions against Palestinians in Gaza.

8. Third States’ standing to invoke responsibility triggered by violations of the prohibition
on genocide
260.

The violation of the prohibition of genocide, an erga omnes obligation under customaryinternational law, generates standing for every State in the international community to
invoke the responsibility of another State. 813 This is reflected in Article 48(1)(b) of
ARSIWA, which affirms the right of a non-injured State to invoke the responsibility of thebreaching State when “the obligation breached is owed to the international community as
a whole.”814 A non-injured State may also claim from the breaching State reparations forthe benefit of the injured State or other beneficiaries of the obligation breached. 815

261.

The obligations under the Genocide Convention are also erga omnes partes. The ICJ
affirmed this in Gambia v. Myanmar, confirming the “right of all other Contracting Parties
to assert the common interest in compliance with the obligations erga omnes partes under
the Convention,” and holding that the Gambia had standing to bring a claim before the ICJ
against Myanmar despite being uninjured by Myanmar’s actions.816 The provisional
measures order in South Africa v. Israel reinforces this jurisprudence, concluding that
South Africa had standing to bring a claim before the ICJ under Article IX of theConvention for an alleged breach of erga omnes partes obligations.817 Hence, Israel’s
violations of the Genocide Convention entitle all States parties to the Convention to invoke
Israel’s responsibility.

262.

All States therefore have standing to bring claims before appropriate international
tribunals—under both the Genocide Convention and customary international law—to
demand a cessation of Israel’s breaches of the prohibitions of genocide and to call for811

Van Anraat at para. 8.
Id.
813
Barcelona Traction at 32; ARSIWA, art. 48(1)(a); James Crawford, Responsibility for Breaches of Communitarian
Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts,
in FROM BILATERALISM TO COMMUNITY INTEREST: ESSAYS IN HONOUR OF BRUNO SIMMA 224, 227 (2011).
814
ARSIWA, art. 48(1)(b)..
815
Id., art. 48(2)(b).
816
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gamb. v. Myan.),Preliminary Objections Judgment, 2022 I.C.J. 477, para. 108 (July 22).
817
S. Afr. v. Isr. First Provisional Measures Order at paras. 33–34.
812

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reparations on behalf of Palestinians in Gaza.818 In particular, States are entitled to instituteproceedings against Israel before the ICJ, pursuant to Article IX of the Genocide
Convention.819

PART 6: CONCLUSION
263.

This report has demonstrated that actions—past and continuing—taken by Israel’s
government and military in and regarding Gaza following the Hamas attacks in Israel on
October 7, 2023, constitute breaches of the international legal prohibitions on thecommission of genocide, incitement to genocide, and failure to prevent and punish
genocide.

264.

This report has shown that Israel has committed the genocidal acts of killing, causing
serious harm to, and inflicting conditions of life calculated to bring about the physicaldestruction of Palestinians in Gaza, a protected group that forms a substantial part of thePalestinian people. These genocidal acts have been motivated by the requisite genocidal
intent, as evidenced in this report by the statements of Israeli leaders, the character of theState and its forces’ conduct against and relating to Palestinians in Gaza, and the direct
nexus between them.

265.

Israel’s violations of the international legal prohibition of genocide and other related crimes
amount to grave breaches of peremptory norms of international law that must be ceased
immediately. Furthermore, these violations give rise to obligations by all other States: torefrain from recognizing Israel’s breaches as legal or taking any actions that may amountto complicity in these breaches; and to take positive steps to suppress, prevent, and punish
the commission by Israel of further genocidal acts against the Palestinian people in Gaza.

818
819

ARSIWA, arts. 48(1)(a), 48(2)(a)–(b).
S. Afr. v. Isr. First Provisional Measures Order at paras. 33-34.

105