Debunking the Genocide Libel: Why Israel’s War in Gaza Does Not Meet the Legal Definition

By
Greg Bouwer
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1) What “genocide” actually means in law

Under the 1948 Genocide Convention, genocide requires specific intent (dolus specialis) to destroy a protected group “in whole or in part.” It is not enough to show large-scale civilian harm or even severe illegality in war; prosecutors must prove the purpose was group destruction. This “intent to destroy” element has been the decisive hurdle in past genocide cases, such as the International Court of Justice’s (ICJ) Bosnia v. Serbia (2007) ruling.

1a) Who can rule on genocide? ICJ vs. ICC

Two international courts have jurisdiction over genocide, but in very different ways:

  • The International Court of Justice (ICJ) hears disputes between states under the 1948 Genocide Convention. It can rule whether a state has failed to prevent or punish genocide, but it does not prosecute individuals. Its rulings are binding on states, though enforcement relies on the UN Security Council. 
  • The International Criminal Court (ICC) prosecutes individuals for genocide, war crimes, crimes against humanity, and aggression under the 1998 Rome Statute. Israel is not a party to the Rome Statute, but the ICC has claimed jurisdiction over Gaza, the West Bank, and East Jerusalem on the basis of “Palestine’s” accession in 2015 — a contested move. Importantly, while the ICC has pursued cases against both Israeli and Hamas leaders, these have involved war crimes and crimes against humanity, not genocide.

Key point: Both courts can address genocide — the ICJ at the state level, the ICC at the individual level. To date, neither has found Israel guilty of genocide.

2) What the world’s top court has — and hasn’t — said about Gaza

In January and May 2024, the ICJ issued provisional measures in South Africa v. Israel. Crucially, the Court did not find that Israel is committing genocide. Instead, it ruled that some Palestinian rights under the Genocide Convention were “plausible” and ordered Israel to prevent genocidal acts, punish incitement, and enable humanitarian aid. The Court emphasised that provisional measures do not decide the merits. No international tribunal has issued a ruling that Israel has committed genocide.1, 2, 3, 4, 5

Meanwhile, the International Criminal Court (ICC) has pursued charges against both Israeli and Hamas leaders for war crimes and crimes against humanity — but not genocide.6

3) Why the genocide claim against Israel fails

a) Israel’s declared objectives

Israel’s publicly stated war aim is to destroy Hamas as a fighting and governing force, not to eradicate Palestinians. While some reckless or inflammatory statements by individuals have drawn criticism, they do not constitute evidence of state policy aimed at destroying Palestinians as a people.7

b) Civilian casualties are not proof of genocide

Genocide law distinguishes between tragic outcomes and destructive intent. Urban warfare in dense environments, especially against an adversary embedded in tunnels beneath civilian areas, can generate high civilian casualties without proving a plan of annihilation. That is why intent (not devastation alone) is decisive.8, 9, 10

c) Evacuation and warning measures

Israel issued mass evacuation orders and warnings from 13 October 2023 onward, using leaflets, phone calls, and UN coordination. These actions are inconsistent with a plan to exterminate civilians. Critics argue these measures were inadequate or coercive, but they nonetheless undermine claims of genocidal purpose.11, 12

d) Hamas’s use of human shields

Hamas’s documented strategy of embedding fighters, tunnels, and weapons in civilian areas increases civilian harm and complicates Israel’s military operations. This tragic reality highlights the complexity of the conflict but does not prove genocidal intent by Israel.13

e) Death toll data cannot establish genocidal purpose

UN agencies themselves have revised Gaza casualty data, especially concerning the breakdown of women and children. High numbers alone (however tragic) do not meet the legal threshold for proving intent to destroy a people.14, 15

4) Scholarly and advocacy claims are not legal judgments

Statements by professional associations or UN staff carry political and moral weight, but they are not binding legal determinations. Only the ICJ and ICC have authority to rule on genocide. As of now, neither has found Israel guilty of this most serious crime.16

5) The stronger genocide case applies to Hamas

Where Israel’s intent is contested, Hamas’s is explicit. On October 7, 2023, Hamas launched mass killings, torture, rape, and abductions targeting Israeli civilians. Senior leaders then vowed to repeat the massacre “again and again until Israel is annihilated.” This is the language of genocide.

  • Ghazi Hamad (Hamas Political Bureau, 24 Oct 2023): “We will repeat the October 7 attack time and again until Israel is annihilated.”17
  • Ali Baraka (Hamas official): Hamas can “repeat October 7 many times.”18
  • Hamas Charter (1988): Calls for the destruction of Israel, citing religious texts about killing Jews.19

Hamas’s genocidal intent is undeniable. The only reason it did not kill more Israelis was not lack of will, but lack of capacity. Its aim was the annihilation of Jews in Israel; it simply lacked the means to achieve it.20, 21

Conclusion

  • Genocide requires intent. The ICJ has not found Israel guilty of genocide, and no evidence establishes a plan to annihilate Palestinians.
  • Israel’s conduct is rightly scrutinised under international humanitarian law, but allegations of genocide are legally and factually unfounded.
  • By contrast, Hamas openly proclaims its genocidal intent. The atrocities of October 7, and promises to repeat them, make clear that the only attempted genocide in this conflict was Hamas’s — thwarted only by its lack of means.
  • https://besacenter.org/debunking-the-genocide-allegationsa-reexamination-of-the-israel-hamas-war-2023-2025/

References

  1. https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf
  2. https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-sum-01-00-en.pdf
  3. https://www.icj-cij.org/sites/default/files/case-related/192/192-20240524-ord-01-00-en.pdf
  4. https://www.icj-cij.org/sites/default/files/case-related/192/192-20240524-sum-01-00-enc.pdf
  5. https://thinc-israel.org/briefing-reports/thinc-briefing-concerning-the-advisory-opinion-of-the-international-court-of-justice
  6. https://www.iiss.org/publications/strategic-comments/2024/06/the-icc-investigation-of-hamas-and-israeli-leaders
  7. https://www.inss.org.il/publication/gaza-war-targets
  8. https://nypost.com/2024/04/04/opinion/israel-defense-forces-work-to-protect-civilians-not-kill-them
  9. https://edition.cnn.com/2023/11/07/opinions/israel-hamas-gaza-not-war-crimes-spencer
  10. https://www.newsweek.com/israel-has-created-new-standard-urban-warfare-why-will-no-one-admit-it-opinion-1883286
  11. https://www.idf.il/en/mini-sites/the-hamas-terrorist-organization/how-is-the-idf-minimizing-harm-to-civilians-in-gaza
  12. https://www.newsweek.com/israel-implemented-more-measures-prevent-civilian-casualties-any-other-nation-history-opinion-1865613
  13. https://henryjacksonsociety.org/wp-content/uploads/2025/05/HJS-Hamass-Human-Shield-Strategy-in-Gaza-Report-WEB.pdf
  14. https://henryjacksonsociety.org/wp-content/uploads/2024/12/HJS-Questionable-Counting-–-Hamas-Report-web-v2.pdf
  15. https://henryjacksonsociety.org/wp-content/uploads/2025/04/HJS-Hamas-Casualty-Reports-Report-WEB-correct.pdf
  16. https://www.uklfi.com/icj-president-confirms-it-did-not-find-there-is-a-plausible-case-that-israel-is-committing-genocide
  17. https://www.memri.org/reports/hamas-official-ghazi-hamad-we-will-repeat-october-7-attack-time-and-again-until-israel
  18. https://www.memri.org/tv/hamas-official-ali-baraka-hizbullah-tv-repeat-october-seven-mujahideen-gaza-envelope-tomorrow-storm-galilee-israel
  19. https://avalon.law.yale.edu/21st_century/hamas.asp
  20. https://www.terrorism-info.org.il/en/hamas-strategy-to-destroy-israel-from-theory-into-practice-as-seen-in-captured-documents
  21. https://www.cambridge.org/core/journals/israel-law-review/article/hamas-october-7th-genocide-legal-analysis-and-the-weaponisation-of-reverse-accusations-a-study-in-modern-genocide-recognition-and-denial/322198E636341BE82F37ED7147FEB0F5