For a genocide3 against a people to occur, one must first classify the people into a group. The crimes against humanity framework of the Rome Statute provides greater guidelines to the acts which are deemed beyond the scope of ordinary warfare. The apartheid framework provided by the Rome Statute lays the groundwork for an apartheid analysis that can guide a deeper conversation of the application of the elements of genocide to the current warfare in Gaza. The classification of the population within Gaza will help decipher the actual makeup of the citizenry in Gaza and Israel. This understanding of the population within these three areas is important because genocide is not indiscriminate. A broader analysis of some separate crimes against humanity would greatly distinguish the current acts in Gaza as genocide, crimes against humanity, or a valid method of defense.

Extermination is also a framework defined under the Rome Statute that can contribute to the understanding of the claims of genocide. Although extermination is classified under the crimes against humanity umbrella in the Rome Statute, an analysis of extermination in particular dovetails with the examination of genocide due the similar results both actions bring about in the affected population. In any war where mass killings occur, the analysis of extermination may be a more legally appropriate classification for acts which don’t meet the high bar afforded to genocide, but which contribute to genocidal conditions which can affect the targeted populations. This is particularly poignant because extermination does not require proof of a perpetrator’s conscious desire to destroy a group, in the same manner genocide requires.

The analysis of the October 7 attacks provides an added lens on the long timeframe of the conflict. In this particular instance, the analysis consists of a power globally deemed as legitimate, defending itself through action of a retaliatory nature, against another power, whose legitimacy is often questioned and whose acts are equated with terrorism. The question then becomes: what are the limits in the right to defend yourself as a sovereign nation, and when does this cross the threshold into genocide? If the label of genocide does not fit, it may reveal that perhaps genocide has become a misnomer for the current level of warfare and its effects that the international community is witnessing in Gaza.

III. The Power of Language: Genocide Versus Crimes Against Humanity

To further understand if a genocide is occurring, it must be determined what differentiates genocide from the crimes against humanity, particularly because of the gravity the charge of genocide carries. The Rome Statute defines an exhaustive list of crimes against humanity. Under the crimes against humanity umbrella, one crime that has been levied against Israel in the international landscape is the crime of apartheid. The understanding of apartheid as applied in this context will aid in solidifying the understanding of defining the population that currently resides in Gaza, and under what conditions. The accusations of apartheid perpetuated by Israel against Palestinians is not a new accusation. The United Nations, one of the most consistently respected international organizations in existence, has defined the area of Gaza as a portion of the Occupied Palestinian Territory.4 The UN’s determination holds particular weight, not only because of the intergovernmental organization’s stature in the international landscape, but because it also cites the Rome Statute, the ICC’s governing document, when defining humanitarian crimes, including crimes against humanity and genocide.5 Amnesty International, an international Non-Governmental Organization, qualified the relations between Israel and Gaza as an “oppressive and discriminatory system of governing Palestinians in Israel and the Occupied Palestinian Territories [which] constitute[] a system of apartheid.”6 Amnesty International also asserts the crime of apartheid as the prolonged and cruel discriminatory treatment by one racial group of members of another with the intention to control the second racial group. Amnesty International is asserting that this is happening with Israel and Gaza because of the racial makeup of both areas and the extent to which Israel has created “a system of oppression and domination over Palestinians in all areas under its jurisdiction and effective control.”7

Currently in the Gaza Strip the people who live there identify with the Palestinian Arab ethnicity8 making the clear majority of citizens in this area, of Palestinian ethnicity. Given the percentage of Palestinian nationals in this area, Gaza can readily be identified as a Palestinian territory. However, nationality and ethnicity are not an equivalent category to race. The definition of apartheid relating one racial group’s control of another racial group then is itself not wholly applicable in the sense that claims of apartheid in Israel and the Occupied Palestinian Territories do not distinguish between race, ethnicity, and nationality. It is thus less applicable in delving further into an apartheid analysis because not only would it require determining the racial group of the Palestinians, but also of the state of Israel, which is a less homogenous population than the one found in Gaza.

Although the issue of race is not a fully settled issue in Gaza and Israel, the analysis and discourse around apartheid in Israel and the Occupied Palestinian Territories does allow for a deeper understanding of the populations living in each area. This understanding and grouping also allows for a deeper understanding of who lives in each area and how the people facing violence in Gaza identify as a separate group than the citizens who live in Israel. According to the U.S.’ Central Intelligence Agency, the ethnic groups within Israel differ vastly from the population in Gaza, with over 73% of Israeli inhabitants belonging to the Jewish ethno-religious group.9 Although there is a sizable Arab minority in Israel (with 21% of Israeli inhabitants identifying as Arab),10 populations in Gaza and Israel are clearly distinct from one another. With the determination that Gaza and Israel contain distinct populations, the genocide analysis gains further clarity. The people in Gaza are an identifiable group based on the categorizations provided by the CIA, and thus airstrikes directed at the Gaza Strip can rightfully be designated as targeting a specific group.

IV. Genocide Defined

Under the Rome Statute, “genocide” is defined as:

the means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. Imposing measures intended to prevent births within the group;

5. Forcibly transferring children of the group to another group.11

To accurately analyze the action of genocide, the definition genocide under the Rome Statute should be analyzed phrase by phrase.

A. Intent

In popular discourse the concept of genocide is much looser than that found in a legal context, and that undoubtedly contributes to the common classification of this current iteration of war as a genocide. The colloquial definition of genocide is based on a social science definition. In social science, genocide is defined as “large scale destruction and acts perpetrated against a population.”12

Within international discourse, the classification of this current iteration of violence as a genocide has gotten so advanced in popular discourse that a lawsuit was filed in the Northern District of California on November 13, 2023 by the nonprofit Center for Constitutional Rights.13 The Center for Constitutional Rights filed this lawsuit on behalf of plaintiffs including a group of Palestinians living in Gaza and the United States as well as human rights organizations. The suit is against U.S. President Joe Biden and other state officials, alleging the United States is complicit by not abiding by the 1948 Geneva convention to take all available measures to prevent a genocide.14 This lawsuit has received support from scholars in the form of a declaration signaling their support.15 The amicable response in popular discourse to the social science definition of genocide is also based on an analysis of the gradual expansion of Israeli territory, and the effects on populations in the region over time. But this common social science classification of the current warfare occurring between Israel and Gaza are not the same definitions we find in the legal community. On the legal international stage, the threshold for the crime of genocide is extraordinarily high.

B. Members of a Group

Any genocidal action must be made with the intention of destroying in whole or in part a national, ethnic, racial or religious group. The first portion of intent in the Rome Statute’s definition is also the most complex to pinpoint when classifying the actions of Netanyahu and those actions he has authorized. The stated intent of Israel in this active war, as declared by the Israeli Prime Minister Benjamin Netanyahu in his October 9, 2023 address is to “exact a price to be remembered by [Hamas] and Israel’s other enemies for decades to come.”16 This statement is vague, but powerful in that it was preceded by the statement “Israel didn’t start this war, Israel will finish it.”17 The intent throughout the Prime Minister’s official statement is squarely directed at Hamas, Hamas militants, and the perpetrators of the atrocities on October 7, 2023. Clearly, Netanyahu’s official declaration of war is not sufficient to find any intent to destroy a national, ethnic, racial, or religious group.

However, the Israeli President Isaac Herzog’s statement during an October 13, 2023 press release paints a different picture which at times conflates the target of Hamas with the Palestinian people. During his press conference, Herzog stated “[i]t’s an entire nation that is out there that’s responsible. It’s not true, this rhetoric about civilians not aware, not involved. It’s absolutely not true.” Adding:

They could have risen up, they could have fought against that evil regime which took over Gaza in a coup d’état.18

These statements by the Israeli president are particularly concerning because the implications on the international stage can be two-fold. Primarily, the goal-post for what deems someone an innocent is shifted with this rhetoric. Requiring every civilian to respond in an uprising, and implying complicity if civilians fall short of this, inherently calls for collective punishment. Secondly, collective punishment itself is prohibited under international law because it creates culpability for acts one did not commit.19 This statement is also concerning coming from Israel’s president because it then can be interpreted as targeting a national or ethnic group. By enacting culpability on the citizens of Gaza, and claiming there are no innocent civilians, it equates the entirety of the citizenry of Gaza with Hamas and imputes onto every civilian the culpability for the terrorist attacks of October 7, 2023.

The words used by the President and Prime Minister, two of the highest-ranking officials of the state of Israel, are of tantamount importance because words are foundational in establishing intent, a key component in defining a crisis as genocide. Which is why even though this statement was made, there must be importance placed on the clarifying statements made by Herzog as well. At the same October 13, 2023 conference, Herzog stated he is not holding the civilians of Gaza responsible for keeping Hamas in political power, and that civilians are not the target of the Israeli defense forces.20 Given the immediate clarification of the statements, it would be difficult to find intent to target the people in Gaza based on their nationality or ethnic group from Herzog’s statements alone. It is also important for the actions taken in the warfare between Hamas and Israel to be critically analyzed due to the stringent requirements for classifying something as genocide and also the grave implications genocide holds with it on the international stage.

C. Elements of the Subsets of Genocide

For the basis of the international standard to be covered, the actions authorized by Netanyahu and conducted by Israel must be analyzed through the Elements of Crimes as defined by the ICC as well. The ICC has provided an enumerated breakdown of the elements of crimes, with Article 6 of this document enumerating the elements of genocide.21 This list allows a look at the actions of the past 50+ days, from October 7, 2023 until December 2023. Genocide is broken down into five subsections:

1. Genocide by killing.

2. Genocide by causing serious bodily or mental harm

3. Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction.

4. Genocide by imposing measures intended to prevent births, or

5. Genocide by forcibly transferring children.22

Within each of these subsections, the act of genocide, no matter the subset, requires “[t]he perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.”23 Netanyahu and Israeli officials under his direction, as the perpetrators of airstrikes and ground invasion on the Gaza Strip, have not purported to have an intent to destroy Palestine in totality, or all members of the Arab Palestinian ethnicity, race, or religious group. What Israel has done, is vow to destroy Hamas,24 the entity behind the October 7 terrorist attack in Israel and the de facto governing body in the Gaza Strip for the past 16 years.25 However, with the nature of the strikes and military operations within Gaza affecting at least 10,000 women and children26 in such a short period of time, raises questions to anyone’s moral compass.

Israeli officials will not dismiss the obvious concerns surrounding the results of Israeli airstrikes and ground invasion on the Gaza Strip. In fact, Israeli officials have addressed these concerns. However, there in their responses there is a purported reasoning for these results, that is unrelated to nationality, ethnicity, race or religion, which would directly disengage any genocide classification. The Israeli military claims that Gaza is a battlefield unlike others, being small and dense.27 This is factually true, as Gaza which has been referred to as the world’s largest open air prison,28 is merely 18 square miles,29 or a 25-by-7 mile strip of land.30 The over two million inhabitants within this area result in an immensely dense 14,893 people per square mile,31 and civilians live next to, and even on top of Hamas combatants, who rely on tunnel networks to shield themselves and their weapons. As a result, this puts residents directly in the line of fire, according to the Israeli military.32 These underground tunnel networks were key to enabling the deadly attacks on October 7, according to the Israeli military.33 Israeli forces also purport to use strategic objectives in order to cause “minimal adverse effect[s] on civilians” in its warfare.

The close proximity with which civilians reside in relation to Hamas creates a tragic reality for the civilian inhabitants of Gaza. Hamas has effectively made the civilian population of Gaza human shields. The innocent civilians are so inextricably linked to Hamas militants in their living quarters. This thus causes the citizenry of Gaza to face their demise at an alarming rate during this iteration of warfare.

i. Genocide by Killing

Genocide by killing is the most readily identifiable definition of genocide, and includes the following elements:

1. The perpetrator killed one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.34

With the war in Gaza taking the lives of at least 15,000 people and the Israeli military acknowledged that children, women, and elderly people have been killed in Gaza35 the first element of genocide by killing is fully met. Given the earlier analysis of Gazans as a distinct group, the second element for genocide is also met since the aggression is targeting inhabitants of Gaza who belong to the Palestinian Arab group. Moving onto element four, this is also met because of the air strikes from the Israeli army, including U.S.-made 2000-pound bombs that can flatten an apartment tower,36 constitutes conduct that satisfies the actus reus of a genocidal policy due to the level of continuous bombing throughout the strip of Gaza. The bombing is capable of directly affecting the total or partial destruction of Gazans. Going back to element three, it remains an outlier which relates back to the general genocide analysis that the Israeli army and leadership cannot rightfully be deemed to have shown explicit intent to destroy the Palestinian Arabs living on Gaza Strip. The intent by the officials and leaders of the Israeli army has consistently been retribution for the October 7th attacks.

ii. Genocide by Causing Serious Bodily or Mental Harm

Genocide by causing serious bodily or mental harm is a less common categorization but given the following elements, it may apply to the current situation in Gaza:

1. The perpetrator caused serious bodily or mental harm to one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.37

The first element of serious mental harm is exhibited by the people in Gaza who have provided updates throughout the warfare. One reporter from Gaza, Bisan Owda, who has provided updates of the war wrote:

I no longer have any hope of survival like I had at the beginning of this genocide, and I am certain that I will die in the next few weeks or maybe days.38

Motaz Azaiza, another Gazan reporter on the ground in the Gaza Strip, stated: “Our situation is tragic beyond understanding” and “remember […] we are a nation that is getting killed and we are trying not to be ethnically cleansed.”39 No matter the factual accuracy of the claims of ethnic cleansing, there is no doubt that mental harm has occurred and this element is met in this conflict. Although the accounts above are just those of two voices from the Gaza Strip, it is reasonable that this sentiment of mental and bodily harm is also met, as at least 40,000 people in Gaza have been reported injured,40 in the Israeli army’s quest to destroy Hamas. The analysis of elements two through four remain the same as that found in the analysis of genocide by killing.

iii. Genocide by Deliberately Inflicting Conditions of Life Calculated to Bring About Physical Destruction

Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction may also apply to the current situation in Gaza given the following elements:

1. The perpetrator inflicted certain conditions of life upon one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.

5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.41

The main differentiating element in analyzing genocide by deliberately inflicting conditions of life calculated to bring about physical destruction, is the manifestation of those conditions. There is evidence to suggest said conditions have been brought about in Gaza. After the first humanitarian-pause between Israel and Hamas, beginning on November 24, 2023,42 humanitarian aid and assistance was able to enter the Gaza Strip in a substantial way,43 after previously being prevented during the four weeks of war leading up to the temporary truce. During the truce, the World Health Organization asserted that outside of the airstrikes, that disease from the circumstances after the bombings including damaged infrastructure, suspended supply chains, the lack of fuel, damaged hospitals and drinking water shortages.44 The World Health Organization has urged that healthcare and sanitation systems in Gaza are in desperate need of restoration,45 otherwise untreated diseases will exacerbate the death toll.46 These conditions were in fact inflicted in Gaza. However, the classification of genocide still falls short because element four is not clear cut. The effects of the bombs and the strategy were undoubtedly calculated as Israeli authorities have specific targets, and will even alert the public of their planned targets through leaflets before their attacks. The difficulty in this analysis comes again from the determination of the group being targeted. The Israeli army is undoubtedly targeting Hamas, but the proximity in which Gazan citizens and Hamas militants reside makes it extremely difficult to group the two into separate categories, and again brings about questions of collective punishment. The analysis of element two related to an identifiable group remains the same as above, where Palestinian Arabs living in Gazans are established as their own group.

iv. Genocide by Forcibly Transferring Children

Genocide by forcibly transferring children is of keen interest in this iteration of the conflict due to the age of the inhabitants of Gaza under the following elements:

1. The perpetrator forcibly transferred one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The transfer was from that group to another group.

5. The person or persons were under the age of 18 years.

6. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years.

7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.47

Genocide by forcibly transferring children is a more attenuated charge of genocide in this current iteration of warfare, but it is worth analyzing given the specific demographics of the Gazan population. The UN’s Permanent Observer for Palestine reported on November 28, 2023 that more than 1.8 million civilians in Gaza, or nearly, 80 percent of the population, are estimated to be internally displaced, with nearly 1.1 million across Gaza sheltering in facilities run by the United Nations Relief and Works Agency for Palestine Refugees in the Near East.48 The displacement of the Gazan population is related to the forcible transferring of children because 40% of Gaza’s population is 14 years old or under,49 children make up around 50% of the population on the Gaza Strip,50 and the median age in Gaza is 18 years old.51 These same citizens are the ones receiving multiple evacuation orders which Israel’s military states should be obeyed by Gazan citizens because it “is the safest way to preserve your safety, your lives, and the lives of your families.”52 If the group’s population is over 40% children, and the group is being instructed that to survive, they must evacuate certain areas, then this is likely classified as transferring the group of children. However, this element is not fully fulfilled because there is not the transferring of children to another group. Rather the transfer occurring is of the group from one space inside the territory to another inside the same territory. However, the issue with the continued notifications of evacuation is that the areas which are safe and habitable for the group lessen with each forced evacuation. There is also increased confusion for the inhabitants trying to stay in safe areas with many Gazans, who were already displaced, under orders to move again.53

The elements of genocide related to killing of members of a group, causing of bodily and mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, are readily identified in the Gaza population since the start of the retaliation for the October 7 terrorist attacks, beginning the newest iteration of this conflict. Yet, what remains true throughout every categorization of genocide is that if the ICC proceeds in prosecuting actions by the Israeli army and leadership, a line of evidence that points to any intent of genocide that can be rightly attributed to the leadership of the state of Israel is lacking. This missing element of intent would block any prosecution for genocide because all elements are needed to successfully bring the charge.

Under this analysis, another main question persists: Could the Israeli military leaders even be subject to prosecution under the ICC? Israel was never a party to the Rome Statute and withdrew its signature from the ICC in 2002 in accordance with Article 127 of the Rome Statute, permitting withdrawal from the Statute.54 However, this does not preclude Israeli leadership from being taken before the ICC.55 A nation state that is not a signatory to the Rome Statute does, however, create limitations on how the Court can preside over that state, in this case Israel or its actions in the Gazan territory.

V. An Exceptional Case for Israel, or Business as Usual?

In the analysis of Israel’s actions, it is crucial to disentangle any criticism of the state of Israel from criticism of Jewish people to preserve any semblance of validity in a critique. The leading anti-hate organization in the world,56 the Anti-Defamation League, has struck down the notion that genocide is happening by Israel against the Palestinian people under the legal definition. In fact, the Anti-Defamation league has likened the notion itself of accusing Israel the heightened rhetoric of committing genocide during this time of as based upon placing an exceptional standard to Israel that does not apply to other countries, and contributes to demonization of the state of Israel.57

To most adequately analyze if the acts of Israel against Hamas in the Gaza Strip amount to a genocide, the public can compare what is currently known about the actions taken in Gaza to other situations deemed as genocides, and situations the ICC and its prosecutors have taken and charged with the crime of genocide. As of December 2023, Israel’s military operations since October 7 have resulted in the injuries of at least 40,900 Palestinians58 with over 14,500 people in Gaza killed.59 Since October 7, 2023, Israel has reportedly dropped at least 25,000 tons of explosives on the Gaza Strip.60 The airstrikes have demolished much of northern Gaza, with the newest iteration of the ground invasion targeting southern Gaza as well. The strikes are all in an effort to fight the Hamas militants. Because civilians are used as human shields, more than 1.7 million people in Gaza have been displaced due to the violence.61

Before the formation of the ICC, the International Criminal Tribunal for the former Yugoslavia prosecuted the crime of genocide in the Bosnian Genocide.62 The Bosnian war resulted in the displacement of over 2 million men, women, and children. A campaign of war crimes, “ethnic cleansing,” and genocide was perpetrated by Bosnian Serb troops under the orders of the Serbian officials at the time, President Slobodan Milošević, the Bosnian Serb leader Radovan Karadžić, and Ratko Mladić the Bosnian Serb commander.63 As Bosnian Muslims fled to the town of Srebrenica, Bosnian Serb forces attacked the people living in the enclave. Bosnian forces controlled the access roads and prevented the delivery of international humanitarian aid such as food and medicine.64 In March 1995, Radovan Karadžić instructed Bosnian Serb forces to eliminate the Muslim population from the Srebrenica enclave.65 As a direct result of the violence, up to 8,000 people were killed.

When analyzed and compared to the Srebrenica genocide, there are reasonable similarities found between the two wars. The similarities between the current iteration of the Israeli–Palestinian conflict and the Bosnian Genocide can reasonably bring about claims that a genocide is happening today. Particularly because in order to understand the current conditions of Gaza, there is a need to determine what entities hold authoritative power over Gaza’s territory, which is aided by the earlier apartheid analysis. Although an undoubtable aspect of this answer is Hamas, there is often debate as to whether Gaza and the West Bank are Occupied territories, or wholly independent entities part of a unified state of Palestine. Israel has conceded that the areas of the West Bank and Gaza are independent territories with their own governments, leadership, and autonomy since September 12, 2005.66 This is supported by the actions of Israel withdrawing all of its military and civilian installations from Gaza, and Hamas itself stating that Gaza is not occupied in 2012.67 Benjamin Netanyahu has even stated that Israel’s goal in Gaza is not to occupy the area.68

Because international organizations, nonprofits, and international bodies have publicly called Israel and Gaza an apartheid regime, the link between Israel’s actions and its control over Gaza can fit the definitions of control seen in the Bosnian Genocide. Defining the areas of Gaza and the West Bank as The Occupied Palestinian Territories by international organizations also brings new considerations for the state of Israel when interacting with the civilians who live in Gaza. The International Law of Occupation requires a hostile army to have “effective control” over a territory in an area where its authority can be exercised, to the exclusion of the territory’s established government.69 If Gaza is an occupied territory, then it can be said that the Israeli army does have effective control over the Gaza territory because Israel has the power to allow aid into the Gaza Strip, which is what occurred during the brief ceasefire from November to December of 2023 where Israel allowed 50 trucks with humanitarian assistance and 100 aid trucks to transport items needed for survival and fuel to Gaza.70 Israel also has control over opening additional humanitarian crossings for the people of Gaza.71 This level of control brings the situation between Israel and Gaza closer to the Bosnian Genocide because Bosnian forces controlled the humanitarian aid to the population in Srebrenica. However, the complicated situation with Egypt and their control of the Rafah border does not squarely place Israel with complete control over all the crossings for Gaza.

In Sudan, the ICC has two outstanding arrest warrants for the former president of Sudan, Omar al-Bashir for the crime of genocide. al-Bashir is charged with the genocide in Darfur due to the killing and torture of hundreds of thousands of people in the Darfur region. Estimates of the death toll in the conflict have reached as high as 500,000.72 Under the ICC, al-Bashir has been charged with committing genocide against the Fur, Masalit, and Zaghawa ethnic groups. These groups were perceived to be close to the armed groups fighting the Sudanese government at the time, and the ICC says a core component of the Sudan government’s campaign against armed groups, in particular against the Sudan Liberation Movement and the Justice and Equality Movement, was the unlawful attack on the civilian population of Darfur.73 The Court found that “there are reasonable grounds to believe that Omar al-Bashir acted with specific intent to destroy in part the Fur, Masalit, and Zaghawa ethnic groups.”74

In comparing the two situations, there is an obvious commonality of the killing of civilian populations. Additionally, just as the groups fighting the government in Sudan were the target of al-Bashir’s violent retaliation, Hamas’ October 7 attacks created threats for the Israeli population causing the government to react. The scorched earth campaign engaged in during the war in Darfur draws similarities to the tactics the Israeli army is engaging in, where civilian targets are not off-limits and many areas of Gaza have been flattened.75 Additionally, the genocide in Darfur resulted in the displacement of 2 million people, and as of December 2023, most of the Gaza Strip’s 2.1 million residents have been displaced.76

However, suggestions that the “Israeli intention to commit genocide [is] visibly materialising on the ground”77 still falls short due to some stark differences between the two situations. First, in Sudan the number of individuals killed is said to be up to half a million people and at least 300,000 civilians. This would make the genocide in Darfur by absolute numbers much deadlier because about 14,500 Gazans have been killed. However in proportion to the population, with Darfur being home to between 7.5 million and 9 million people,78 and Gaza being home to around 2 million people these outcomes may be more comparable proportionally. One fact that cannot be overlooked is the continued messaging from Israeli officials that they are targeting Hamas, and not a specific ethnic group, which differs from the calls al-Bashir has made whereby his government sponsored group was targeting the Black African farmers, with the intent to destroy this ethnic group.79 Thus, a comparison to the ICC’s other genocide charges still does not amount to a direct comparison for the situation between Israel and Hamas.

VI. Extermination as a Form of Defense?

Under the Rome Statute, “extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.80 In evaluating the response Israeli officials have authorized for the October 7 attacks, Israel has invoked the right to defend itself. Israeli President Herzog has noted that under International Humanitarian Law, Israel has the right to defend itself, and they are taking all the necessary precautions to alert Gaza civilians of future strikes.81 Israel has not formally invoked the right to defend itself under Article 51 of the U.N. Charter, which would provide specific constraints for a defense operation.82 However, under international law, the right of self-defense can be interpreted as the right to repel an attack, and not the right to wage an all out war which may be deemed disproportionate.83

The calculated risks the Israeli army officials undertake when they determine that they are killing two civilians for every one combatant,84 or attacking one target that leaves 400 people killed or injured,85 on a proportionate scale can likely amount to extermination under international law. The elements of extermination under the crimes against humanity framework of the ICC are as follows:

1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population.

2. The conduct constituted, or took place as part of a mass killing of members of a civilian population.

3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.86

In the current situation between Gaza and Israel, the first element of extermination is at least partially met because of the confirmed reports of death within the Gaza Strip. The second element is also met because it is known that as of December 2023, over 14,500 people in Gaza have been killed, with at least 10,000 being civilians. Element three for extermination is also likely met because the Israeli government has conceded that Hamas hides among the civilian population, and thus civilians in hospitals, homes, and other areas deemed primarily for civilian use, and ordinarily protected under International Humanitarian Law are par for the course when a calculated attack occurs. But, because Israel has stated that it is directing its attacks against Hamas, and not actual innocent civilians, there is a question of whether the third element in the extermination analysis is met, because civilians may still be regarded as the human shields of Hamas under this analysis. Element four of knowledge in determining an extermination is met, if it is found that the attack qualifies as “direct.” This is because the release of leaflets to the population while serving as a humanitarian strategy to protect those reading the warnings, also shows direct knowledge of the offensive and the destruction it can cause. Under the current language of the ICC’s Rome Statute, extermination is the closest applicable crime this comment can find to categorize the current situation in Gaza. With this, there is still not a squarely on point charge for Israel under current International Humanitarian Law. A question still remains: if the international community is wrongfully accusing Israel of committing crimes it has not legally committed, is there a sense that International Humanitarian Law needs an audit to re-define what the international community deems acceptable behavior by a nation state in times of war?

In that the ICC would prosecute Hamas’ leadership and Netanyahu, there is a likelihood that reconciliation can begin. On both the Israeli and Palestinian sides, civilians have demonstrated outcries against their leadership which is steadfast in attacking and harming the other side. However, with the ICC’s lack of jurisdiction over Israel, the task of prosecution of any Israeli leader or any war crimes under the Rome Statute would demonstrate a barrier the ICC may find impermissible. Especially when there is still debate over which crimes the state could be prosecuted with under the current structure of the crimes which the ICC has jurisdiction over.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See, e.g. Craig Mokhiber, Director of OHC-NY, Letter of Resignation (Oct. 28, 2023), available online.

   (Mokhiber resigned over the organization’s “failure” to act against what he called a “text-book case of genocide.”). ↩

2. 2.

   Three Rights Groups File ICC Lawsuit Against Israel Over Gaza “Genocide”, Al Jazeera, Nov. 9, 2023, available online. ↩

3. 3.

   Rome Statute, Art. 6. ↩

4. 4.

   Crisis Context and Impact, OCHA, available online (last visited Dec. 21, 2023). ↩

5. 5.

   Crimes Against Humanity, OGPRtoP, available online (last visited Dec. 21, 2023). ↩

6. 6.

   Amnesty International, Israel and Occupied Palestinian Territories (2022), available online. ↩

7. 7.

   Amnesty International, Israel’s Apartheid Against Palestinians (2022), available online. ↩

8. 8.

   Gaza Strip, at “People and Society,” CIA World Factbook, (updated Dec. 6, 2023), available online (last visited Dec. 21, 2023). ↩

9. 9.

   Israel, at “People and Society,” CIA World Factbook (updated Dec. 6, 2023), available online (last visited Dec. 21, 2023). ↩

10. 10.

    Id. ↩

11. 11.

    Rome Statute, supra note 3. ↩

12. 12.

    Solcyre Burga, Is What’s Happening in Gaza a Genocide? Experts Weigh In, Time Magazine, Nov. 14, 2023, available online. ↩

13. 13.

    Defense for Children International—Palestine et al. v. Joseph R. Biden, Jr., Anthony J. Blinken, Lloyd James Austin III, 3:23-cv-05829, Complaint (N.D. Cal., Nov. 11, 2023), available online. ↩

14. 14.

    Id. ↩

15. 15.

    Defense for Children International—Palestine et al. v. Joseph R. Biden, Jr., Anthony J. Blinken, Lloyd James Austin III, 3:23-cv-05829, Declaration of Dr. John Cox, Dr. Victoria Sanford, and Dr. Barry Trachtenberg in Support of Plaintiffs’ Motion for Preliminary Injunction (N.D. Cal., Nov. 13, 2023), available online. ↩

16. 16.

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17. 17.

    Id. ↩

18. 18.

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19. 19.

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21. 21.

    International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010 (Jun. 11, 2011) [hereinafter Elements of Crimes], available online, archived. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Dan De Luce, Peter Nicholas, Abigail Williams & Yasmine Salam, Israel Says It Wants To Destroy Hamas. But Who Would Govern Gaza After That?, NBC News, Oct. 18, 2023, available online; Samia Nakhoul, Matt Spetalnick & Alexander Cornwell, What Is Israel’s Endgame in Gaza Invasion?, Reuters, Oct. 19, 2023, available online. ↩

25. 25.

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26. 26.

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27. 27.

    Id. ↩

28. 28.

    Human Rights Watch, Gaza: Israel’s “Open-Air Prison” at 15 (updated Jun. 14, 2022), available online. ↩

29. 29.

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30. 30.

    Human Rights Watch, supra note 28. ↩

31. 31.

    Moriarty & Berkowitz, supra note 29. ↩

32. 32.

    Letherby, supra note 26. ↩

33. 33.

    Id. ↩

34. 34.

    Elements of Crimes, supra note 21, at Art. 6(a). ↩

35. 35.

    Letherby, supra note 26. ↩

36. 36.

    Id. ↩

37. 37.

    Elements of Crimes, supra note 21, at Art. 6(b). ↩

38. 38.

    Bisan Owda (wizard_bisdan1), Instagram (Dec. 2, 2023), available online. ↩

39. 39.

    Plestia Alaqad (byplestia), translating and quoting Motaz Azaiza, Instagram (Dec. 2, 2023), available online; see also Sanjana Karanth, Gaza’s Remaining Journalists Are Tired and Running Out of Hope, Huff. Post, Dec. 3, 2023, available online. ↩

40. 40.

    Ali Sawafta, More Than 15,900 Palestinians Killed in Gaza Since Oct. 7—Palestinian Health Minister, Reuters, Dec. 5, 2023, available online. ↩

41. 41.

    Elements of Crimes, supra note 21, at Art. 6(c). ↩

42. 42.

    Najib Jobain, Josef Federman & Jack Jeffery, On Day One of Gaza Cease-Fire, Hamas and Israel Carry Out First Swap of Hostages and Prisoners, AP, Nov. 24, 2023, available online; see also Edmund Blair, Israel–Hamas war: The Hostage Deal and Ceasefire Explained, Reuters, Nov. 27, 2023, available online. ↩

43. 43.

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44. 44.

    Disease Could Kill More in Gaza Than Bombs, WHO Says Amid Israeli Siege, Al Jazeera, Nov. 28, 2023, available online. ↩

45. 45.

    Id. ↩

46. 46.

    David Gritten, Untreated Diseases Could Kill More Than Bombings in Gaza, WHO Warns, BBC News, Nov. 28, 2023, available online. ↩

47. 47.

    Elements of Crimes, supra note 21, at Art. 6(e). ↩

48. 48.

    Press Release, G.A., GA/12566, Staggering Loss of Life in Gaza, Follow-on to Temporary Truce Dominate General Assembly Debate on Decades-Long Question of Palestine (Nov. 28, 2023), available online. ↩

49. 49.

    Gaza Strip, supra note 8. ↩

50. 50.

    Sarah Shamim, Is Israel’s Gaza War the Deadliest Conflict for Children in Modern Times?, Al Jazeera, Nov. 7, 2023, available online. ↩

51. 51.

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52. 52.

    Avichay Adraee (@AvichayAdraee), X (Dec. 2, 2023) (Ara.), available online.

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53. 53.

    Vivian Yee, Ameera Harouda & Talya Minsberg, Israel’s Military Widens Evacuation Orders in Southern Gaza, N.Y. Times, Dec. 4, 2023, available online?. ↩

54. 54.

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55. 55.

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56. 56.

    Who We Are, ADL, available online (last visited Dec. 14, 2023). ↩

57. 57.

    Anti-Defamation League, Allegation: Israel Commits Acts of Genocide (Oct. 25, 2023), available online. ↩

58. 58.

    Sawafta, supra note 40. ↩

59. 59.

    Phil Helsel, Israeli PM Office Says Country Committed to Freeing Hostages, Eliminating Hamas, NBC News, Dec. 1, 2023, available online. ↩

60. 60.

    Hanna Duggal, Mohammed Hussein & Shakeeb Asrar, Israel’s Attacks on Gaza: The Weapons and Scale of Destruction, Al Jazeera, Nov. 9, 2023, available online. ↩

61. 61.

    Helsel, supra note 59. ↩

62. 62.

    Nicole Hassenstab, Prosecuting Hate: Genocide and the International Criminal Court, Am. U. (Sep. 7, 2023), available online. ↩

63. 63.

    International Residual Mechanism for Criminal Tribunals, Srebrenica Timeline of a Genocide, available online (last visited Dec. 15, 2023). ↩

64. 64.

    Id. ↩

65. 65.

    Id. ↩

66. 66.

    Elizabeth Samson, Gaza Not Occupied, Says Hamas, So Where Is the UN?, Hudson Inst. (Feb. 14, 2012), available online. ↩

67. 67.

    Id. ↩

68. 68.

    Netanyahu Says Not Seeking to “Occupy” Gaza But “Demilitarise” It, Al Jazeera, Nov. 10, 2023, available online. ↩

69. 69.

    Samson, supra note 66. ↩

70. 70.

    Barak Ravid, U.S. Pressing Israel to Allow Same Levels of Aid Into Gaza as During Ceasefire, Axios, Dec. 2, 2023, available online. ↩

71. 71.

    Alexander Ward & Erin Banco, US Quietly Pushing Israel to Open a Second Gaza Crossing, Politico, Dec. 6, 2023, available online. ↩

72. 72.

    Press Release, Amnesty Int’l, Why Former Sudan President Omar Al-Bashir Must Not Escape Justice (Apr. 17, 2019), available online. ↩

73. 73.

    Id. ↩

74. 74.

    International Criminal Court, ICC-02/05-01/09, Case Information Sheet: The Prosecutor v. Omar Hassan Ahmad Al Bashir (updated Jul. 2021), available online. ↩

75. 75.

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76. 76.

    Bassam Masoud, Gaza Families Flee Again to Shrinking, Overcrowded Pocket of Land, Reuters, Dec. 5, 2023, available online. ↩

77. 77.

    Burga, supra note 12. ↩

78. 78.

    Relief Web, Darfur 2003–2005 (Sep. 2021), download. ↩

79. 79.

    Genocide In Darfur, Holocaust Memorial Day Trust, available online (last visited Dec. 21, 2023). ↩

80. 80.

    Rome Statute, supra note 3, at Art. 7(b). ↩

81. 81.

    Isaac Herzog, Israeli President, War Against Hamas Intended “To Save the Values of Western Civilization”, MSNBC on YouTube, Dec. 5, 2023, video. ↩

82. 82.

    Michelle Nicols, US Pushes UN to Back Israel Self-Defense, Demand Iran Stop Arms to Hamas, Reuters, Oct. 21, 2023, available online. ↩

83. 83.

    Owen Jones, A Risk of “Extermination” in Gaza: UN Rapporteur Francesca Albanese’s Horrifying Warning, YouTube (Nov. 4, 2023), video. ↩

84. 84.

    Mitchell McCluskey & Richard Allen Greene, Israel Military Says 2 Civilians Killed for Every Hamas Militant Is a “Tremendously Positive” Ratio Given Combat Challenges, CNN, Dec. 6, 2023, available online. ↩

85. 85.

    Id. ↩

86. 86.

    Elements of Crimes, supra note 21, at Art. 7(1)(b). ↩