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LAST WEEK, AMNESTY International published a lengthy report detailing its finding that Israel is committing genocide against the Palestinian people in the occupied Gaza Strip, and that it has been doing so since the Hamas-led attack of 7 October 2023.
The Amnesty report, entitled “You Feel Like You Are Subhuman”, has been met with claims from Israeli government officials and interest groups that the human rights NGO fabricated its own bespoke definition of genocide in order to reach its damning conclusion.
Israeli spokesperson David Mencer described the report to Sky News as “a classic case of antisemitism, it is Holocaust inversion”.
However, international law experts have told The Journal that the accusation levelled at Amnesty is not accurate and, as one genocide scholar put it, is a “vexatious” attempt to tarnish the organisation’s reputation.
According to the Genocide Convention of 1948, genocide means any of a number of specific acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
Those acts include 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; and forcibly transferring children of the group to another group.
Intent to commit genocide is what distinguishes it from other crimes like war crimes and crimes against humanity, and makes it much harder to prove.
Through its investigation, Amnesty said that it had found sufficient basis to conclude Israel is committing genocide against the Palestinian people in Gaza (a protected group under the Genocide Convention). More than 44,000 people have been killed in the last 14 months, around 17,000 of whom are children, according to the Gaza Ministry of Health.
The NGO said it “recognises that there is resistance and hesitancy among many, mainly other states, in finding genocidal intent when it comes to Israel’s conduct in Gaza”.
“Amnesty International concedes that identifying genocide in armed conflict is complex and challenging, because of the multiple objectives that may exist simultaneously,” it added.
The key issue being debated since the report’s publication is around what objectives may exist during a conflict.
Amnesty’s report examined “the killing of civilians, damage to and destruction of civilian infrastructure, forcible displacement, the obstruction or denial of life-saving goods and humanitarian aid, and the restriction of power supplies” in Gaza.
It also analysed “Israel’s intent through this pattern of conduct and statements by Israeli decision-makers”.
Critics have rounded on page 101 of the report, which discusses “state intent”.
Establishing genocidal intent is a requirement stemming from the Genocide Convention which is bolstered by previous International Court of Justice (ICJ) rulings.
The report suggests these previous rulings are too conservative and restrictive because they say that if there was any other motive available, then genocidal intent cannot be inferred.
Therefore, during an armed conflict or counter-terrorism operation, genocidal intent would be impossible because there is another stated aim.
According to Amnesty, they “can be read extremely narrowly, in a manner that would potentially preclude a state from having genocidal intent alongside one or more motives or goals in relation to the conduct of its military operations”.
The report adds, while pointing to detailed explanations further on in the text, that it “considers this to be an overly cramped interpretation of international jurisprudence and one that would effectively preclude a finding of genocide in the context of an armed conflict”.
Amnesty considers that the Genocide Convention “must be interpreted in a manner that ensures that genocide remains prohibited in both peacetime and in war and that the ICJ jurisprudence should not be read to effectively preclude a finding of genocide during war”.
Amnesty argues that states can simultaneously commit genocide while waging war for other purposes, for example while conducting a counter-terrorism operation.
Separately, Israel has also been accused of genocide in a case taken by South Africa at the ICJ. Following preliminary hearings, the Court issued emergency injunctions against Israel in March 2024, and then again in May, which have been ignored.
Israel’s Foreign Ministry released a video on social media in which Deputy Minister of Foreign Affairs Sharren Haskel said:
“Amnesty International thinks that you’re stupid because they think in a 101-page report that they actually produced you will not read that.”
The report is 296 pages long but the section critics have focused on is found on page 101.
“In this report they actually altered and changed the legal terms and definition for what is a genocide because Israel doesn’t meet those criterias,” Haskel continued.
“So Amnesty International had to alter it.”
David Mencer’s predecessor Eylon Levy made the same claim while also accusing the organisation of antisemitism.
“If you need to invent a new definition of genocide to accuse Jews of doing it, you are a pathological antisemite,” Levy wrote on X.
Israel’s closest allies – the US, UK and Germany – have rejected Amnesty’s finding, as has the Anti-Defamation League in the US, which described the report as “littered with inaccuracies, flaws, and contortion of facts to fit its own twisted definition of ‘genocide’”.
“The organisation’s false and callous use of the term ‘genocide’ diminishes the gravity of the crime and is a transparent attempt to malign the Jewish state.”
The Journal spoke to three international law experts and asked if Amnesty had invented its own definition of genocide.
“No,” replied Mike Becker, assistant professor of international human rights law at Trinity College Dublin.
“[Israel's] criticism assumes that the law is both static and interprets the existing law relating to the Genocide Convention in an especially conservative way.”
Janina Dill, co-director of the Oxford Institute for Ethics, Law, and Armed Conflict, said: “I do not believe that Amnesty works with a different substantive definition of genocide than the definition enshrined in the Convention and developed in ICJ case law.”
For Dirk Moses, a professor of political science at the City University of New York and editor-in-chief of the Journal of Genocide Research, the accusation by Israeli spokespeople constitutes an attack on the credibility of Amnesty International.
“The claim that Amnesty International is inventing its own definition of genocide to tarnish Israel’s campaign is vexatious. It is an attempt to tarnish Amnesty International,” Moses said.
It is not inventing a new, unknown definition.”
Becker explained that “with all legal questions, there are a range of plausible understandings and interpretations”.
“Amnesty International’s approach to the question falls well within the bounds of reasonable legal argument.”
In other words, Amnesty’s arguments fall along the lines of those you might expect to hear in an international courtroom.
“I think the types of arguments that Amnesty International has put together, especially on that crucial question of how do you prove genocidal intent, very much look like a blueprint for the types of arguments that we can expect South Africa to make” at the ICJ, Becker said.
“I actually thought it was laudable that Amnesty pays very careful attention to the existing case law by the ICJ and by other courts on the question of genocidal intent, and they are trying to construct an argument within the terms of the ICJ’s own language.”
The experts explain that its not a new definition but a legal interpretation of the definition that exists in the Genocide Convention and past judgement from the ICJ.
Amnesty’s reading of the Genocide Convention and past ICJ judgements has highlighted an ambiguity that is the subject of a growing debate among international lawyers and scholars, Becker explained.
The debate centres around the ICJ’s test which must be passed for it to rule genocide is being committed.
“The test that the Court has developed is what is sometimes referred to as ‘the only reasonable inference test’,” said Becker.
In the absence of a black-and-white documented plan to carry out a genocide, a pattern of evidence needs to be established in order to prove genocidal intent.
This is no easy task.
“The Court has said that the only reasonable inference, when looking at that evidence, has to be that there was the intent to commit genocide,” Becker said.
“That test is inherently problematic,” he said, because of how the word “only” has been interpreted historically.
Janina Dill said that “it must be reasonably impossible to explain the actions without genocidal intent. Crucially, the mere existence of other intentions does not mean genocide is ruled out.”
Mike Becker said the problem with the test, as some have understood it, “is that it suggests that if you could infer any other possible intention from a party’s conduct, it would defeat the inference of genocidal intent”.
This is what the Amnesty report was addressing with its “overly cramped” description of previous ICJ rulings.
Amnesty is arguing for the ICJ’s intent test to be understood “in a way that essentially makes it possible to find that some situations do constitute genocide,” said Becker, “because others would look at the court’s test, and if you accept the types of criticisms being directed at the Amnesty report, it suggests a reading of the ICJ’s test that is insurmountable, that makes it impossible to prove genocide in any case”.
“And so Amnesty International is setting out a path for how you can, in fact, arrive at a finding of genocide while still adhering to the language of the Genocide Convention and the court’s own test for establishing genocidal intent.”
Dirk Moses pointed out that in the South Africa vs Israel case at the ICJ, and in the Amnesty report, there are references to “countless genocidal statements by Israeli leaders, so seeking a genocidal inference in Israel’s pattern of conduct may not be necessary”.
But if it is necessary, Moses continued, “it should be noted that an ICJ dissenting view is that this standard of only a genocidal inference is unrealistic because military and genocidal intentions are always fused or mixed”.
The Irish government formally announced its intervention in the South Africa vs Israel case today.
In his statement, Tánaiste Micheál Martin said: “We are concerned that a very narrow interpretation of what constitutes genocide leads to a culture of impunity in which the protection of civilians is minimised.”
There have been very few cases in which international courts have reached a finding of genocide.
“My view is that this is by design,” says Moses. “The states who devised the law of genocide distorted the intentions of Raphael Lemkin, who coined the term during WW2 to protect nations and peoples under German occupation.
“When states assembled in the UN to codify his idea into a convention in 1947 and 1948, they drastically restricted its meaning so that it could not apply to their suppression of domestic opposition or destruction of external enemies.
“They separated armed conflict from genocide. The ICJ has followed suit in its definition of ‘specific intent’ in its previous judgements,” Moses said.
Under this understanding of genocide, which used the Nazi Holocaust as its model, the dropping of nuclear bombs on Japan by the United States was not considered genocidal because it was done for military purposes and not solely in order to destroy a part of the Japanese people.
This is something Moses explained in a recent lecture at Georgetown University in Washington, D.C., during which he also cited the example of the US firebombing of Vietnam.
“However, sensibilities about armed conflict have changed,” he said, noting again that often, “military and genocidal intentions are fused, or run together”.
“Increasingly, legal opinion is recognising this empirical fact.”
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