Author: Nandini Sharma,  Amity University, Noida 

This article analyses the ongoing Israel – Palestine conflict especially through the lens of international criminal laws with a special focus on Genocide convention of 1948 to support and counter the allegations faced by Israel it navigates through international case laws and critically examines whether the actions undertaken by Israel in aftermath of 7^th October is retaliation or constitutes for crime against humanity it demonstrates that Israel actions may meet both physical element and specific intent requirements for genocide, evidenced by it’s ideology, systematic policies and statements of Israeli officials . It further evaluates recent actions taken by South Africa at International Court of Justice (ICJ) examining legal precedent and factual assertions such as extensive damage to infrastructure , widespread displacement, alleged sexual violence and destruction of basic means human survival , it examines whether conduct of Israeli defence force amounts to Genocide, taking into account legal definition of the same. Ultimately, this article seeks to enhance wider conversation on accountability in Modern day conflict and challenges in implementing international legal standards.

Keywords: 

Israel – Palestine, genocide, genocide convention, international Court of justice, United Nations, OCHA, Hamas attack, genocidal intent, war crimes, Gaza, displacement, conflict.

The Israel-Palestine conflict is an old case that caused polarisation of the region and became one of the highly disputable geopolitical affairs. It began with Britain conquering the region known as Palestine during the World War one after the ottoman empire had been defeated, the region was inhabited by Arab majority and Jewish minority but the conflict between Jewish and Arab community began to intensify when UK made in principle to give a Jewish people a national home in Palestine it was known as pledge called balfour declaration. 

In 1920s to 1940s Jews coming to the land which they claim to have historical connections with increased and  by the year 1947 it numbered six lakh thirty thousand and made up just more than 30 percent of the total population due to persecution of jews in Europe and the murder of approximately six million Jews during the holocaust added to the passion of jews to be given their own safe haven. It resulted in the emergence  of  animosity and war between jews and arabs in the back drop of  the violence between the two ethnic groups in 1947 , United Nations adopted a resolution 181 which is known as partition plan which proposed  to  partition Palestine into Arab and Jewish states When Hamas won the Palestinian election in 2006 it ousted Their opponents after an intense battle and since then Israel and Hamas have engaged in major conflicts with one another and the conflict that occurred in May 2021 ended in ceasefire after 11 days but this did not signify the end of conflict and atrocities that both the sides have suffered.

Following Israel military action in Gaza , a number of international actors such as states , human rights organisation other humanitarian experts have been concerned with the fact that Israeli action in Gaza  could be explanations of genocide against Palestinian people. As per  United nation office for the coordination of humanitarian affairs (OCHA) since the start of 2023 until December 12, Israeli forces have killed approximately 464 Palestinians including  109 children in the west bank which was more than twice as many as in any other year since 2005 and bombing of schools , healthcare facilities and humanitarian blockade has further contributed to the miseries of Palestinian people.

The alleged genocide is not short of legal implications, in the following pages an attempt will be made to examine legal basis and consequences of the same while understanding the root cause.

1. Legal embodiment of genocide 

Genocide is considered the one of deadliest crime, has significant ethical and legal ramifications, Raphael lemkin in 1944 to better understand and characterize a particular kind of crime against minority communities came up with the term Genocide but recognition of genocide as a crime under international law by United nations general assembly took place in 1946 ,against the backdrop of world war II ,The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) making it one of the first human rights treaty recognising and establishing genocide as a separate crime.  As of April 2022, 153 states had ratified the Convention.  The Convention incorporates elements of general customary international law, according to the International Court of Justice (ICJ), which has said this on numerous occasions.  This means that states have a legal obligation before the concept that genocide is a crime prohibited by international law whether or not they have ratified the Genocide Convention.

The definition of crime as genocide is provided in article II of Genocide conversation it is stated that genocide is any of the following acts committed with the intent of eradicating national, ethical, racial or religious groups in it entirety or in part:-

1.) Murdering people of a group 

2.) Inflicting severe physical and psychological harm to group members; 

3.) Intentionally subjecting a group to conditions of life that are likely to result in it physical destruction, either in entirety or in parts 

4.) Forcing procedures that are aimed at the prevention of births in the group 

5.) Forceful removal of children of the group to a different group   

Elements of crime 

Article II of the genocide convention bears a very restricted definition of the crime of       genocide and it must fulfill two basic elements which are: 

• Physical element also referred to as actus reus that encompasses above provided five acts and

• Mental element further referred to as mens rea, and it is a specific intent (Dolus Specialis).

To annihilate a shielded group, listed in article II as intent to destroy, totally or partially, a racial, ethnic, , national or religious groups 

Mentioned intent is one of the hardest elements to establish and has considerable evidentiary problems, to establish a genocide there must be a presence of an intention on the part of perpetrators to destroy a national, ethnical, racial or religious group physically, cultural destruction or an intention to disperse a community is not enough, genocide is a crime with an exceptional intent or dolus Specialis.

Under article III of the genocide convention acts given below are punishable:

• Genocide 

• Plot to commit genocide 

• Open and straight encouragement to commit genocide 

• Effort to genocide 

• Involvement in the same.

Judicial precedent  a legal analysis on genocidal intent

 The rules of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda, make individuals " who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution" of one or more of the above genocidal acts, responsible of genocide in the broadest sense of the term. Public and private persons are punishable for the same , article 7(3) of ICTY enables leaders to be responsible regarding the criminal act committed by his or her subordinate in case he or she knew or should have known about it and failed to take any measure to stop them or to punish them later on.

International courts such as ICTR and ICTY in their various rulings have defined genocidal intent, and according to their interpretation, genocidal intent does not need to be shown that acts were committed because members of a group belong to that group but( Niyitegeka, ICTR, Trial Judgment 51-53) rather, it must be shown that acts were committed against members of a group specifically because they are members of that group(Akayesu, ICTR, Trial Judgment) In the absence of direct explicit evidence regarding genocidal

Also, international tribunals ruled that indirect intent can be proven by the presence of a distinct pattern of behaviour over time a given amount of preconceived plan or policy is inferred by the systemic manner in which a crime of genocide is carried out.

Prosecutor v. Kayishema and Ruzindana  in discussing the second essential under article II of the genocide convention referring to infliction of serious bodily injuries or mental harm the court made the useful clarification that harm should be one that seriously injures health, disfigures or inflicts serious injury to external or internal organs or senses. Otherwise, the Trial Chamber considered the term "serious bodily harm” as essentially self-explanatory.   In international practice, the term “serious mental harm” has occasionally been defined too broadly. The trial chamber in prosecutor v. Akayesu further interpreting the second element under article II clarified that the harm need not be permanent or irremediable 

The ICJ decision on Bosnia-Herzegovina v. Serbia and Montenegro (2007) represented a break in genocide law. The Court held that genocide had occurred at Srebrenica, but that Serbia was not responsible for genocidal intent or control by the forces who carried out the massacre. 

 Review of various precedent and applicable case laws has identified four key areas in this very contextual approach, 1. Statement indicating genocidal intent, 2. The scale of atrocities committed 3. Systematic targeting of the protected group  and 4 . Evidence suggesting commission actus reus was planned consciously.

These precedents , case law analysis help to determine the underlying intent but inferring genocidal intent is not a mechanical inquiry though these four factors hold the most prominence with international tribunals but it cannot stop future courts from identifying additional factors.

Factual and legal allegations faced by Israel 

Basis of such allegations against Israel 

Israel is now experiencing growing systematic allegation and accusation of the act of war crime and even of the acts that can be termed as genocide in the Gaza strip by both state and non state actors that include united nations, international human rights organisations like Amnesty, international and human rights watch, and legal scholars. Such allegations claim that such activities are in contravention of numerous humanitarian and criminal provisions of the international law and are founded on documented trends of military patterns of behavior and activities, testimonies of Israeli leaders and swiftly deteriorating humanitarian conditions in Gaza.

Human rights watch Israeli authorities have deliberately created conditions of life that are likely to cause the destruction of part of the population of Gaza and in their 179 page report on extermination and acts of genocide: they have determined that Israel has deprived Palestinian in Gaza of water intentionally they have cut off electricity and restricted fuel supply thereby ensuring that all facilities to access water are also destroyed 

And according to United nations about 1.9 million people out of 2.2 million population were displaced in Gaza as of October 2024 , UN report looking into the matter of conduct and behaviour of Israeli authorities that caused high level of displacement of Palestinian people alleged it to be forced displacement and that evidence showed that there was a strong intent behind it thus constituting to war crime, according to international humanitarian law or law of war any forced displacement of any civilian within an occupied territory is forbidden and when such displacement is performed with criminal intent it amounts to war crime but such displacement

OCHA report people are restricted to shrinking areas as 81 percent of gaza strip Area now lies within the Israeli militarized zone or the displacement orders or both where they overlap and according to UN report estimated no of 632,700 people have been displaced yet again since the ceasefire broke between 17 th -18 th march 2025 in Gaza.

 On 23 may 2021, Antonio Guterres UN secretary general said that Israel has obligations under the international humanitarian law which are clear. It has to honour the intrinsic dignity of its citizens and handle them in a human manner. Civilian inhabitants of an occupied territory should not be forcefully transferred, deported and displaced. It should permit and enable the necessary aid as well.

UNFA, gaza sexual and reproductive health working and other groups on 28 may report that nearly 700, 000 women and girls of menstruating age are facing a silent menstrual emergency. And according to WHO at least 94% of all hospitals are damaged and destroyed and only 16 out of 36 hospitals in Gaza remain operational with only 2000 hospital beds available for about 2 million population which highlights the medical insufficiency and health emergency that people of Gaza are facing.

3. South Africa v. Israel 

On 29 th December, 2023, the republic of South Africa instituted proceedings against state of Israel, claiming that Israel military operations in Gaza had violated genocide convention, 1948 and south Africa requested provisional measures, on January 11 and 12, 2024 the international court of justice (ICJ) held a public hearing to consider the request of provisional measures by south Africa.

The facts provided by South Africa emphasize on the deeds and omissions of Israel to be genocidal in nature since they are aimed at causing the annihilation of the significant portion of the national, racial and ethnic groups of Palestine.

These evidence explain the actions carried out by Israel like conducting air strikes and the alleged inability of Israel to carry out various actions like avoiding harming civilians, furthermore, the allegations highlight the public comments by Israeli leaders as evidence of genocidal intent.

Israel response to genocide accusations 

Israel has firmly rejected allegations made by South Africa and responded by accusing South Africa of having “profoundly distorted “ perspective on the conflict, it was “ barely distinguishable” from Hamas’s perspective this defence was made a day after ICJ heard South Africa’s case . In Israel's opening speech lawyer Tal Beckar stated that Hamas directly or indirectly was responsible for the death of the Palestinian civilians .

Bekar called the application made by the south seeking court to impose a provisional cease-fire order “unconscionable” and “seeks to thwart Israel’s inherent right to defend its own interests.”

Prime minister of Israel Mr. Netanyahu defended Their narrative by stating that “it is not we who have come to perpetrate genocide, it is Hamas”,” it would kill us all had it the chance”, “on the contrary the IDF (Israel defence force) are doing what they can in a moral way”

Moreover, Israeli military purports to have observed several precautions to avoid the death of civilians these are as follows: - 

• Cancelling some strikes when they are in the pathway 

• Airdropping flyers to alert civilians about impending attacks 

• People were urged to evacuate the targeted buildings by phone calls.

Although the Israeli presentation acknowledged the sufferings of gaza civilians, it maintained that Israel has no intention of committing a genocide. Hamas waging war among non-combatants was the reason for the high number of civilian deaths. Israel also argues that Israel operation and Action are appropriate and in self-defence claiming it to be Their most inherent right under international humanitarian law.

Court rulings

On 26 January, 2024 the Court ruled on several interim measures which it was requested to take against Israel by South Africa. The court disapproved the primary demand that was to direct and compel Israel to withdraw its operations in Gaza .

However, court retraining Israel also told it not to allow its military to conduct operation or engage in acts that could be described as genocide in nature, it was also ordered not to permit and punish incitement to commit Genocide and permitted humanitarian assistance to the civilians of Gaza. These measures are only tentative since it may take years before a final decision is made.

The war between Israel – Palestine  has emerged as one of the most pressing legal and humanitarian issue to have occurred in our times though legal definition of Genocide requires substantial evidence  particular to demonstrate the element of intent the evidence of systematic actions being carried out with view to eliminate protected groups like murder, injury, creating conditions that may endanger life and according to various credible sources Israeli airstrike and bombardment has destroyed numerous vital infrastructure like hospital, homes, schools and killed some 54, 000 civilians and others as reported and documented by UNRWA and the Norwegian refugee council that Amnesty international and UN have issued concerns indicating deliberate policies leading to mass deprivation. Also, tribunals in Bosnia, Myanmar, Rwanda detected the same pattern of behaviour and conduct that is indicative of genocidal act and intent. eventually whether genocide is legally established or not the magnitude and extent of suffering warrants immediate humanitarian response and Action as well as restored international determination towards justice, accountability and peace.

References 

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