NYT (“U.N. Court Orders Israel to Halt Rafah Offensive“):
The International Court of Justice on Friday ruled that Israel must immediately halt its military offensive in the southern Gaza city of Rafah, dealing another blow to the country as it faces increasing international isolation.
The court has no means of enforcing its orders, and Israel said the language of the ruling left some room for interpretation. Hard-line politicians in Israel immediately vowed that Israel would not comply.
[…]
“The court considers that in conformity with obligations under the Genocide Convention, Israel must immediately halt its military offensive, and any other action in the Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part,” the court’s president, Nawaf Salam, said in reading the ruling.
[…]
The court emphasized the need for “the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance,” including maintaining open land crossings and, in particular, the Rafah crossing, which Israel seized more than two weeks ago. It ordered Israel to “immediately take all effective measures to ensure and facilitate the unimpeded access” of United Nations investigators into Gaza. The judges also ordered Israel to submit a report on the measures it had taken to implement the decision within a month.
[…]
In a statement, the Israeli government said its military “has not and will not” take actions that would lead to the partial or complete destruction of the civilian population of Rafah. In effect, it said that the court’s decision has no bearing on Israel’s offensive because the military is not committing the prohibited acts.
The behavior of the ICJ* here baffle me. While there is a strong argument to be made that Israel’s Rafah offensive will lead to the deaths of noncombatants disproportionate to the military advantage gained (a determination next to impossible to render ex-ante), the notion that it constitutes “genocide” is simply bizarre.
Alas, the loose definition of genocide used in international law, “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” is problematic. Wars, by their very nature, involve killing and, as they have evolved from set-piece battles between troop formations into whole-of-nation fights, collateral damage to civilian populations becomes inevitable. So, any war is bound to destroy “part” of the group.
The UN Office on Genocide Prevention breaks this down further:
The popular understanding of what constitutes genocide tends to be broader than the content of the norm under international law. Article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements:
- A mental element: the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”; and
- A physical element, which includes the following five acts, enumerated exhaustively:
- Killing members of the group
- Causing serious bodily or mental harm to members of the group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group
The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.
Importantly, the victims of genocide are deliberately targeted – not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”
So, obviously, Israel has “kill[ed]” and “caused serious bodily or mental harm” to “members of the group.” But the target is Hamas, a political entity, not the Palestinian people as a whole.
The ICC is hanging its hat on “Deliberately inflicting on the group conditions of life calculated to bring about [the group’s] physical destruction in whole or in part.” Aside from some unfortunate early statements by Israeli officials in the direct aftermath of the October 7 attack with unclear antecedents, there is simply no evidence of intent.
Again, it’s possible that a post facto examination of the campaign will determine that war crimes were committed in Rafah. But disproportionality is a very different offense than genocide.
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*The original version of the post mistakenly referred to the ICC, the International Criminal Court, which has made separate rulings against Israel.
