Why Israel’s war in Gaza did not meet the legal definition of genocide: Mark Oppenheimer

Key topics:Gaza war caused massive civilian suffering, but not legally genocide.Israel’s goal: defeat Hamas, recover hostages, not destroy Palestinians.Civilian deaths influenced by Hamas’ tactics, not genocidal intent..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Mark Oppenheimer*.In the aftermath of the war that followed the attacks of 7 October 2023, accusations that Israel committed genocide in Gaza became widespread. These claims were driven by harrowing images of destruction and immense civilian suffering. Yet genocide is not a rhetorical accusation or a moral shorthand for extreme violence. It is a specific crime in international law, defined narrowly and applied cautiously. When the legal criteria for genocide are applied rigorously to the Gaza war, the conclusion is that Israel’s conduct, however destructive and often tragic, did not meet the legal threshold for genocide.Under international law, genocide requires two distinct elements. The first is the commission of prohibited acts, such as killing members of a protected group. The second, and far more demanding requirement, is the presence of dolus specialis, a special intent to destroy a protected group as such, in whole or in part. This intent must be the primary aim of the conduct, not merely a foreseeable or even accepted consequence of military action..Read more:.Anti-Israel lobby targets holocaust centre over Gaza genocide claims: Marika Sboros.International courts have consistently emphasised that where another plausible intent exists, such as the defeat of an armed enemy, the crime of genocide cannot be established. The destruction must be the goal itself, not an instrument or by-product of achieving another objective.Israel’s declared war aims after October 7 were consistent and publicly articulated throughout the conflict. The first was the dismantling of Hamas as an armed organisation capable of repeating the attacks of October 7. The second was the recovery of Israeli hostages taken during that attack. These aims were not ambiguous. Hamas had carried out a large-scale assault against civilians, killing approximately 1,200 people, committing acts of sexual violence, and abducting more than 250 hostages. Hamas leaders openly stated that such attacks would be repeated.Under international law, a state has the right to respond militarily to such an attack. A campaign aimed at neutralising an armed group responsible for mass civilian violence is legally distinct from a campaign aimed at destroying a civilian population. Even if the means used are contested or in some cases unlawful, the presence of a clear military objective fundamentally alters the legal analysis.Civilian deaths in Gaza were extensive and devastating. This reality cannot and should not be denied. Entire neighbourhoods were destroyed, families were wiped out, and basic infrastructure collapsed. However, civilian casualties, even on a massive scale, do not by themselves constitute genocide. Modern urban warfare, particularly when conducted against a non-state actor that embeds itself within civilian populations, has repeatedly produced catastrophic civilian harm. This was evident in conflicts such as Mosul, Raqqa, Aleppo, and Grozny. None of those wars were classified as genocide under international law.The decisive question is why civilians were killed, not simply that they were killed. In Gaza, a plausible and well-documented alternative explanation existed. Hamas deliberately operated from within civilian areas, built extensive tunnel networks beneath homes and public buildings, stored weapons in civilian structures, and integrated its command operations into densely populated zones. This strategy made civilian harm foreseeable, but foreseeability is not equivalent to genocidal intent.Throughout the conflict, Israel employed measures that were inconsistent with an intent to destroy Palestinians as a people. These included advance warnings of strikes, evacuation directives, humanitarian pauses, negotiated ceasefires, and large-scale prisoner exchanges to secure the release of hostages. These measures were frequently criticised as insufficient or poorly implemented, and in some cases they failed to prevent immense suffering. Nonetheless, their existence is legally significant. A state pursuing genocide does not warn civilians, negotiate pauses, or accept compromises that preserve civilian life.Another critical consideration is capacity. Israel possessed overwhelming military power relative to Gaza. If its intent had been genocidal, the scale and pace of killing would have reflected that objective. Historically recognised genocides are characterised by relentless efforts to maximise deaths within the targeted group. In Gaza, the fighting fluctuated in intensity, operations were halted or limited following diplomatic pressure, and ceasefires were accepted. These patterns are inconsistent with a campaign of extermination.Much attention was paid to inflammatory rhetoric by Israeli politicians during the war. Some statements were reckless, dehumanising, and morally indefensible. However, international law distinguishes between rhetoric and state policy. Genocide requires proof that the destruction of a group was a policy pursued through coordinated state action. Courts assess intent by examining overall conduct, military directives, rules of engagement, and operational patterns, not by isolating individual statements made in moments of anger or political grandstanding.When Israel’s conduct was examined as a whole, its actions aligned with a counter-insurgency war aimed at defeating Hamas rather than with a policy of extermination directed at Palestinians as such. This conclusion does not absolve Israel of potential responsibility for violations of international humanitarian law, but it does undermine the genocide allegation.Any honest assessment of civilian suffering in Gaza must also account for Hamas’ role in shaping the battlefield. Hamas initiated the conflict through a mass civilian massacre. It continued to hold hostages throughout the war. It embedded its forces within civilian infrastructure, restricted civilian movement, diverted humanitarian aid, and openly acknowledged that civilian suffering served its strategic objectives. International humanitarian law recognises that responsibility for civilian harm is shared when one party deliberately uses civilians as shields. This does not remove Israel’s legal obligations, but it materially affects the attribution of intent.Ultimately, the genocide claim fails because the evidence supports a different and more plausible explanation for the war. Israel fought a brutal and often destructive campaign aimed at dismantling Hamas after an unprecedented attack. That campaign caused enormous civilian suffering, some of which may warrant legal accountability. But genocide requires proof that the destruction of Palestinians as a people was the objective. The available evidence does not support that conclusion..Read more:.Trump's Middle East triumph: Israel, Hamas reach hostage deal in Gaza breakthrough.None of this diminished the moral gravity of what occurred in Gaza. Civilian deaths were tragic. The suffering of children was intolerable. Infrastructure was destroyed on a scale that will take years to repair. Accountability for unlawful conduct remains essential.However, mischaracterising war as genocide carries serious consequences. It dilutes the meaning of the crime and undermines the credibility of international law. Genocide is the crime of annihilation. What occurred in Gaza was a devastating war, but under international law, it was not genocide..*Mark Oppenheimer is a practicing advocate at the Johannesburg Bar.

Why Israel’s war in Gaza did not meet the legal definition of genocide: Mark Oppenheimer

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