Gaza and the Charge of Genocide: Law, Rhetoric, and Reality

In recent months, the word “genocide” has echoed across headlines, protest placards, and diplomatic chambers. The war in Gaza has generated a humanitarian catastrophe of staggering proportions. Yet the question remains: is this a genocide? For many legal scholars, judges, and institutions, the answer is not nearly as simple as the rhetoric suggests.

The Legal Definition
The 1948 Genocide Convention defines genocide with precision: specific acts of killing, serious harm, or destructive conditions must be undertaken with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. It is this element of specific intent (dolus specialis) that distinguishes genocide from other grave crimes. Without proof of such intent, however devastating the suffering, the charge collapses into misuse of a juridical term.¹

The ICJ’s Interim Orders
South Africa’s case against Israel at the International Court of Justice drew global attention. Yet in January 2024, and again in May 2024, the ICJ did not declare that genocide was occurring. Instead, it issued provisional measures—emergency instructions designed to prevent potential genocide, to protect civilians, and to ensure aid delivery. The Court made clear that it was not ruling on the merits, but only that a “plausible risk” existed which required safeguards.² A merits ruling, which could take years, will decide whether the threshold of genocidal intent is actually met.

The ICC’s Position on Israel
In May 2024, the International Criminal Court prosecutor sought arrest warrants against both Hamas and Israeli leaders. The charges laid against Israeli officials were serious: war crimes and crimes against humanity, including starvation as a method of warfare. Notably absent was any genocide charge.³ This omission reflects the high evidentiary bar. Even in a conflict marked by immense civilian casualties, prosecutors have thus far judged the case for genocidal intent insufficient.

NGO and UN Reports
Human rights organisations and UN rapporteurs have been more forthright. Amnesty International, Human Rights Watch, and the UN Commission of Inquiry have all issued reports concluding that genocide is taking place. Their reasoning combines the scale of destruction with inflammatory rhetoric by certain Israeli officials.⁴ Yet critics warn that NGO reports are not judicial rulings, and that their inference of genocidal intent often relies heavily on rhetoric taken out of operational or political context.⁵ Nor can these organisations be treated as neutral. Amnesty International, Human Rights Watch, and others have long been accused of disproportionate focus on Israel, selective use of evidence, and political agendas that align closely with activist campaigns rather than balanced legal analysis.¹³

The Question of Intent
Intent remains the linchpin. The ICJ has long held that genocidal intent must be the only reasonable inference from a pattern of conduct.⁶ Here, competing explanations exist. Israel insists its aim is the defeat of Hamas, not the destruction of Palestinians as a people. Its defenders point to warnings before strikes, humanitarian corridors, and declared safe zones as evidence inconsistent with an intent to destroy the group.⁷ Detractors counter that the effectiveness of these measures has been negligible and that rhetoric from senior officials betrays a darker purpose. The legal debate hinges on which inference is stronger—and whether genocide can be the only plausible conclusion.

Hamas and Genocide
It is crucial to note that Hamas itself stands accused of genocide. The original Hamas Covenant of 1988 invoked religious texts about killing Jews and portrayed the conflict as a struggle to eradicate them as a group.⁸ Even though a 2017 political document softened the language, it did not renounce the earlier commitments. After the massacres of 7 October 2023, governments worldwide described Hamas’s actions as genocidal. More significantly, in May 2024 the ICC prosecutor sought arrest warrants against Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh for war crimes, crimes against humanity, and genocide.⁹ Hamas’s battlefield methods compound this accusation: the group has embedded military assets in schools, mosques, and hospitals, deliberately using civilians as human shields in violation of international law.¹⁰ Thus, while accusations against Israel remain contested in court, Hamas leaders are under active investigation for genocide in connection with their attacks on Israeli civilians.

The Rhetoric of Hyperbole
It is not only the courts that matter but the way language is wielded in public debate. The rush by many Leftist voices to brand Israel’s actions as “genocide” is not a sober legal judgment but a polemical reflex. In demonstrations across Western capitals, chants and banners collapse the complexity of the conflict into simplistic binaries: oppressor versus oppressed, coloniser versus colonised. This is not analysis; it is ideology.

Such rhetoric is damaging in two ways. First, it trivialises the term “genocide” itself, diluting its moral weight and making it harder to confront actual genocidal projects elsewhere in the world. Second, it hands Hamas a propaganda victory. By framing Israel’s military campaign as a war on Palestinians as such, pro-Palestinian activists reinforce Hamas’s own narrative that the group represents all Palestinians. In reality, Israel has stated consistently that its objective is the dismantling of Hamas’s military and political apparatus, not the destruction of a people.

This distortion is compounded by the role of international bodies. The United Nations Human Rights Council has repeatedly singled out Israel with a standing agenda item unique to no other country, while remaining silent on egregious abuses elsewhere.¹¹ UNRWA, meanwhile, has been dogged by revelations of Hamas infiltration, incitement in its school materials, and even staff complicity in the 7 October attacks.¹² Nor do NGOs such as Amnesty International or Human Rights Watch offer a corrective, for they too have displayed partisan patterns in their reporting, often criticised by legal scholars and other rights defenders as abandoning impartial standards.¹³ To treat such institutions as neutral commentators is to ignore their track record of partiality. Their reports may be politically weighty, but they cannot be mistaken for disinterested judgments of law.

The consequence is clear: rhetorical inflation and compromised sources obscure the distinction between war crimes and genocide. They mislead public opinion, embolden Hamas, and misrepresent Israel’s prosecution of the war as an assault upon an entire people. Political hyperbole may stir crowds, but it does nothing to serve justice, peace, or the dignity of the victims on either side. Worse, it prolongs the cycle of conflict by amplifying grievance while excusing terror.

Conclusion
The suffering in Gaza is undeniable. War crimes and crimes against humanity may indeed be occurring. But to brand this war a genocide, before courts have ruled and while intent remains contested, is to transform legal discourse into propaganda. If genocide is to retain its moral force, it must be reserved for the cases where the intent to annihilate a people is clear beyond reasonable doubt. Hamas’s October 7 massacres may well fall into that category; Israel’s military campaign has not, at least so far, been legally proven to do so.

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¹ United Nations, Convention on the Prevention and Punishment of the Crime of Genocide (1948).
² ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Orders of 26 January 2024 and 24 May 2024.
³ ICC, Situation in the State of Palestine, Prosecutor’s applications for arrest warrants, 20 May 2024.
⁴ Amnesty International, “Israel’s Genocide against Palestinians in Gaza” (5 December 2024); Human Rights Watch, “Israel’s Gaza Atrocities Amount to Extermination, Genocide” (19 December 2024); UN Commission of Inquiry Report (16 September 2025).
⁵ Lawfare, “Israel and Genocide: What the ICJ Did—and Did Not—Say” (January 2024); EJI Talk, “The Specific Intent Test for Genocide” (2025).
⁶ ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 2007.
⁷ BESA Center, “Why the Gaza War Is Not Genocide” (2025).
⁸ Hamas Covenant (1988), arts. 7, 13.
⁹ ICC Prosecutor Karim Khan, Situation in the State of Palestine, arrest warrant applications, 20 May 2024.
¹⁰ United Nations Human Rights Council, Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict, A/HRC/29/CRP.4, §§ 116–118, documenting Hamas’s use of human shields; see also Israel Ministry of Foreign Affairs, “Hamas’ Use of Human Shields” (2023 update).
¹¹ UN Watch, Agenda Item 7: The UNHRC’s Systematic Bias Against Israel (2023).
¹² United Nations Office of Internal Oversight Services, Investigation into UNRWA Staff Involvement in the 7 October Attacks (2024); U.S. State Department, “UNRWA Textbooks and Incitement,” Congressional Testimony (2023).
¹³ Gerald M. Steinberg & Anne Herzberg, NGO Monitor Report: NGO Bias and the Arab-Israeli Conflict (Jerusalem, 2022); see also condemnations of Amnesty’s 2022 “apartheid” report by the governments of France, Germany, and the United States as biased and disproportionate.