What is happening inside Gaza gives every indication of Israel committing genocide, but using international law as a guide, is it?

Since the terrorist organization Hamas attacked Israel on October 7, 2023, Israel has claimed the right to self-defense, a topic I have explored in a piece I wrote for Malaysiakini. However, a vital question now emerges: Are there any reasonable grounds to believe that Israel has committed genocide, as defined by international law? Additionally, is Israel’s claim to self-defense being influenced by an ideology of settler-colonialism in Palestine?

Historical precedents, such as the settler colonialism faced by Native Americans in the United States, provide a framework for understanding similar dynamics. Native Americans were perceived as threats by the settlers, leading to various methods of oppression, including ethnic cleansing, large-scale incarceration, mass killings, starvation, forced assimilation, and birth prevention—all categorized as forms of genocidal extermination.

Mirroring this historical context, the ethnic cleansing of indigenous Arabs in Palestine has been ongoing since 1947, primarily driven by the goal of creating a Jewish state. This process intensified in 1967 when Israel occupied the West Bank and East Jerusalem, leading to extensive killings, destruction of villages, and the denial of the right of return to expelled Palestinians.

Israel has portrayed Palestinians as security threats to justify their oppression and denial of their status as protected civilians, effectively transforming Gaza into a heavily controlled enclave. This historical perspective is critical in assessing the claims of atrocities committed by Israel against Palestinians.

The actions of Israel must be evaluated within the legal framework of the Genocide Convention of 1948. This convention codifies genocide as an international crime and establishes that all states are obligated to prevent and prosecute acts of genocide under the jurisdiction of both the International Court of Justice and the International Criminal Court.

To legally constitute genocide, specific elements must be satisfied: actus reus “guilty act” and mens rea “guilty mind.” The convention delineates that genocide differs from other international crimes by requiring a specific intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Such intent can often be inferred from high command orders, official documents, and other evidence.

The evidentiary threshold for proving intent to commit genocide includes establishing that the perpetrator engaged in acts such as killing, transferring children, or inflicting severe harm with the intent to destroy the group. Furthermore, proof of intent to achieve a genocidal outcome is necessary, rather than merely achieving that outcome. If the perpetrator acts with the requisite intent to destroy the group through acts of displacement, this may also be considered evidence of specific genocidal intent.

The convention emphasizes that genocide incurs criminal liability for both individuals and states, encompassing involvement in committing, attempting, conspiring, inciting, planning, instigating, ordering, or abetting genocidal acts. Those who knowingly participate in such acts carry criminal responsibility.

According to evidence, Israel has committed at least two acts as prescribed by the convention:

Israel has killed over 30,000 civilians, approximately equivalent to 1.4 percent of Gaza’s population, through military attacks using lethal weapons and creating life-threatening conditions. Critically, Israel has not demonstrated that these deaths were predominantly of adult males who were active combatants of Hamas, which would be lawful. Instead, a significant number of the deceased are women and children, which may indicate a genocidal intent.

The convention outlines that deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part, constitutes genocide. This does not necessarily directly kill the people but can lead to various means of physical destruction, such as starvation, dehydration, reducing medical essentials below minimum levels, and the destruction of housing and essential infrastructure for survival. The ongoing sixteen-year blockade has severely isolated Gaza, depleting it of necessary survival resources. The attacks on UNRWA shelters have further aggravated the humanitarian catastrophe.

The overwhelming circumstances of Israel’s assaults on Gaza, combined with statements from senior military and government officials indicating genocidal intent, suggest a deliberate strategy to physically destroy the Palestinian populace. These actions distort International Humanitarian Law, which protects civilian populations, by treating protected Palestinian civilians as terrorists, thus justifying lethal measures. The genocidal intent and actions represent an escalation of settler-colonial ideology, inflicting widespread harm on the entire population. The ongoing Nakba must be stopped, and the preventable loss of lives must be addressed immediately. No Palestinian in Gaza is safe under these conditions.