The word genocide is now shouted so routinely that it risks losing all legal meaning. Gaza is
the most recent example: protests, headlines, and pundits insist the International Court of
Justice (ICJ) has already all but convicted Israel. It hasn’t. And that distinction matters.
Let’s start with the simple truth: war is horrific, and civilians pay the highest price. But
horror alone does not make a genocide. The Genocide Convention — which the ICJ must
apply — requires something very specific: intent to destroy, in whole or in part, a
national, ethnic, racial, or religious group. Not reckless force. Not terrible decisions.
Intent.
The ICJ has issued three provisional rulings in the South Africa v. Israel case. In none of
them did the court find that Israel plausibly committed genocide. What it found was that
Palestinians constitute a protected group, and that they have a plausible right to be
shielded from genocide while the case proceeds. That is a crucial legal distinction, one
that is often blurred in public discourse.
Consider the reaction when former ICJ president Joan Donoghue clarified this point on
BBC’s HARDtalk. She explained, repeatedly, that the court did not find a plausible case
that Israel was committing genocide. The host, Stephen Sackur, wasn’t having it, accusing
the court of sidestepping an “overwhelming” case and even questioning whether its judges
— too male, too Western — were out of touch. When reality conflicts with the narrative,
many simply attack the referee.
But if we care about the rule of law, we must step back and apply the same legal scale of
justice the ICJ must use. That means examining intent, not emotions.
The Question of Intent — On All Sides
Start with the actors in Gaza.
Israel:
There is no denying that some Israeli officials have used reckless and inflammatory
language. Statements invoking Amalek or calling for mass displacement are abhorrent and
deserve criticism. Israel’s bombing campaign has caused staggering destruction: over
400,000 homes damaged or destroyed, according to UN estimates. These facts belong on
the scale.
But so do these: the IDF routinely warns civilians to evacuate areas it plans to strike.
Israel has been accused of dropping more bombs on Gaza than people killed. When that is
put on the scale of justice, you may find it isn’t the genocide argument proponents believe.
It could also indicate care to avoid civilian casualties? More for the court to consider.
Every life, of course, matters. We still don’t know how many of the ca 3 per cent (reported
by Hamas) of the Gaza population killed in the conflict are Hamas operatives. What we do know is that the population in Gaza has not suffered the losses of other earlier declared
genocides, despite the ferocious fighting (Rwanda 20 to 25% the Holocaust above 65% of
the Jews in Europe). Although it is not conclusive, it must be put on the scale together with
the other pieces to be put on the scale. It is impossible to look past Hamas’s use of an
extensive network of tunnels under civilian areas, including hospitals and schools. Neither
the victims in Rwanda nor to the Nazi victims could be accused of similarly turning civilian
areas into legitimate military targets.
Now weigh Hamas’ intent.
Hamas:
On October 7, Hamas shattered an existing cease-fire and carried out atrocities, broadcast
with pride. Senior leaders openly celebrated civilian bloodshed as a “revolutionary”
necessity. Khaled Meshaal vowed the attack would be repeated “again and again.” Hamas
officials have stated — explicitly — that protecting Gaza’s civilians is not their
responsibility but of the UN. Their tunnels, they said, are only for their fighters.
This is not the language or strategy of a group trying to protect its population. And it is
impossible to examine Israeli conduct without acknowledging Hamas’ deliberate
embedding within civilian infrastructure. If targeting combatants hiding under hospitals is
considered unlawful per se, then any armed group can make itself untouchable simply
by using its civilians as shields. That would collapse the laws of war entirely.
The International System Has Its Own Credibility Problem
Another element in the legal balance is the reliability of those presenting themselves as
neutral arbiters.
UNRWA and MSF operated over tunnel networks they never noticed. The ICRC never saw
the Israeli hostages even once, but continued business as usual in Gaza. UN leadership
amplified catastrophic death predictions — such as 14,000 babies dying within 48 hours —
that never materialized. Billions in international aid intended for civilians enriched Hamas
leaders living safely abroad while the various international organisations looked away.
The UN Secretary-General, Mr. Guterres, took an awfully long time to condemn even the sexual violence perpetrated on October 7, and continued to demand an immediate cease-
fire and release of hostages and not the other way around.
If we are going to consult neutral witnesses, we must first ask whether neutrality still
exists.
What a Court Must Do — And What We Should Do
A court cannot rely on outrage or political pressure. It must weigh evidence of intent,including the intent of all sides.
Does Israel’s conduct — destructive as it has been — show a plan to destroy Palestinians as a group?
Does Hamas’ conduct show a plan to destroy Israelis as a group?
Courts answer such questions by interpreting the law, not through moral equivalence or
emotional rhetoric.
And here is the uncomfortable truth: if Hamas had released the hostages and laid down its
arms, the war would likely have ended swiftly. Instead, it continued to fight from within
civilian areas while the world demanded Israel stop firing — but rarely demanded Hamas
stop hiding. How easily it could have ended also goes on the scale of justice.
The Personal Picture
Imagine two neighbouring compounds. One day, fighters from one storm the other,
murdering, raping, taking hostages — including infants — back into a maze of tunnels
under the local hospital. If that tactic is allowed to succeed, there is no law left to restrain
any future conflict. Civilian infrastructure becomes permanent human armour; justice becomes impossible.
That is the dilemma Gaza presents. Not a slogan. Not a simple morality play. A legal and
moral puzzle in which intent — not imagery — must carry the most weight.
Is imbalance between the number of killed a measure of genocide?
It seems obvious that the stronger party or the more technologically advanced in a war will take out more lives on the other side. That was the case during Desert Storm when very few Americans died and very many Iraqis. Was that genocide just because of the imbalance in
the death count? Goes on the scale.
After the current Cease Fire
Both sides accuse each other of cease-fire violations. It is not always easy to determine which party fired first and which party is responding.
However, we find that Hamas is not abiding by the cease-fire it agreed to. They were slow-
rolling the return of the dead hostages who died under their care. We also see footage of
Hamas operators, now in uniform, publicly killing opposition in Gaza to instil fear. Does
that indicate a lack of intent to abide by the ceasefire terms to disarm and step down from
power?
While US envoy Witkoff is trying to keep the cease-fire in place, Hamas is reported to state,
“it is better for us to fight and let thousands be killed by fire under Israeli attack than by
inaction”. Again, calling for their own to be sacrificed. If one side treats its own horribly,
does it become the responsibility of the other side to care for the enemy civilians? If that is
true, treating one’s own civilians worse and worse puts more and more onus on the enemy.
We shall have to wait for the final ICJ ruling to find out.
So, Was It Genocide?
The ICJ has not said so, and the evidence required to reach that conclusion remains far
from settled. What is clear is that we must resist turning genocide — the gravest crime in
international law — into a partisan accusation.
If the world wants justice, it must first commit to honesty.
I invite debate.