Image Source: https://www.nytimes.com/2024/02/12/world/middleeast/rafah-bombing-hostage-rescue-gaza.html
Genocide which is referred to as the “the crime of crimes”,[1] is perpetrated against persons that hail from a particular group and who are targeted because of such belonging. The discriminatory intent which can take multifarious inhumane forms must be accompanied by the intention to destroy, in whole or in part,[2] the group to which the victims of the genocide belong.[3] This additional subjective element, dolus specialis[4] which has a very high standard distinguishes genocide from an ordinary crime.[5] The actual extermination of a group in its entirety however, is not implied in genocide.[6] An assessment of a perpetrator’s mental condition can be made by taking into account the available evidence, including the perpetrator’s conduct, and deducing the applicable mental state if the facts support it. This concept has gained prominence in discussions surrounding the actions of Israeli leaders during the ongoing situation in Gaza.
The Israeli occupation of the Occupied Palestinian Territory is the one of the longest, internationally recognised belligerent occupations in modern history. Genocidal statements made by Israeli officials, including high-ranking military personnel and members of the Knesset, along with other influential figures and groups in Israel collectively contribute to a clear and systematic intent by Israeli decision makers to destroy Palestinians within Gaza. To substantiate the existence of individual mens rea within Israel’s war cabinet, the verbal statements of intent expressed by Israeli officials in command positions, the “decivilianization”[7] of Gazan civilians through the systematically employed human shields claim by Israel, and the patterns of conduct of genocidal practices of execution of genocide all amount to genocidal intent.
Tribunals have recognized that genocidal intent can be inferred from cumulative actions and words.[8] Since the beginning of Israel’s 2023 attacks on Gaza, Israeli state, military, and government officials have publicly claimed that all Palestinians in Gaza act as ‘human shields’ for Hamas, and consequently that the war on Gaza includes and is against the entire civilian population.[9] Prime Minister Benjamin Netanyahu’s invocation of Amalek, described in the Hebrew Bible as the enemy nation of the Israelites, urged Israelis to “remember what Amalek has done to you,” referencing a biblical command to annihilate an entire population.[10] This statement, coming from the highest level of government, points towards an intent to destroy Palestinians as a group.
In addition to the Prime Minister’s statement, the Israeli Defence Minister Yoav Gallant described Palestinians as “human animals”, in his proclamation of the “total siege” on October 9 2023. On October 7, Israeli Prime Minister Benjamin Netanyahu referred to Gaza as “the city of evil.” On December 24, he presented Israel’s assault as a battle against “monsters.” He further stated “this is a battle, not only of Israel against these barbarians, it is a battle of civilisation against barbarism.”[11]
Nissim Vaturi, Deputy Speaker of the Knesset, openly called for the destruction of Gaza and its inhabitants, stating “burn Gaza now no less!” He added, “The people of Gaza cannot be described as animals because animals are better than humans.”[12]This rhetoric aligns with accusations of genocidal intent as it reflects a desire to eliminate a population based on their identity.
In Energy Minister Israel Katz’s statement on cutting off essential resources, Katz declared, “what has been will be no more,” when discussing the cutting off of water, electricity, and fuel to Gaza.[13]This statement, coupled with actions to deprive civilians of necessities, demonstrates an intent to create conditions of life calculated to bring about the group’s physical destruction.[14]
Moreover, Isaac Herzog, President of Israel, attributed blame for an attack on Israel to “the entire nation” of Palestine, suggesting a collective culpability that undermines the distinction between combatants and civilians. He stated in a press conference “it is an entire nation out there that is responsible. “It is not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true.” [15] The scale of this accusation and the inclusive nature of its wording signals a clear intent to erode the protected civilian status.
The precise threshold for genocidal intent has been subject of controversy. Dolus specialis is an element for other crimes specified within the Rome Statute, however, the intent required specifically for the crime of genocide more accurately reflects the gravity of the act. The courts are more likely to focus on the specific intent of the accused, rather than relying on circumstantial evidence. Moreover, they often referred to the individual circumstances of each case when determining the accused’s intent. This underscores the fact that the courts take a holistic approach to cases of genocide and consider the individual circumstances of each case.[16]In the case of Jelisic the prosecution stated that it was sufficient for the mental element that the perpetrator “knew that his acts were destroying, in whole or in part, the group, as such”, and made clear that such knowledge must refer to actual (as opposed to probable) destruction.[17] Another example is the case of Akayesu,[18] where the perpetrator was convicted for genocide, among other crimes. The court found that he had the specific intent to destroy the Tutsi ethnic group and that his actions were part of a larger plan to eliminate the Tutsis from Rwanda. This serves as an example of how the intent necessary for genocide differs from that of other international crimes and is not as stringent as the requirements for other crimes specified by the Rome Statute.[19]
In addition to the substantive crimes, modes of liability are highly relevant. Criminal responsibility extends not only to physical perpetrators but also to any culpable individual who is associated with them via a mode of liability such as command or superior responsibility, indirect perpetration through an organized apparatus of power, co-perpetration, indirect co-perpetration, or accomplice liability. This could encompass individuals with a culpable mental state who facilitated the crime, even from afar, by assisting in its commission.
The cumulative reference in Article 30 of the Rome Statute of the International Criminal Court requires the existence of a volitional element. This element encompasses situations under dolus directus of the first degree[20] in which the suspect is cognizant of and undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime. The above-mentioned volitional element also encompasses other forms of the concept of dolus,[21] that is, the situations in which the suspect, more simply put, foresees a consequence of his conduct as certain is considered to act willfully with regard to this consequence, even if he regrets its occurrence.[22] This is known as dolus directus of the second degree.[23] It is evident from the Israeli officials’ declarations that they intend to destroy the civilian population or property. However, even if the criteria for dolus directus of the first degree is not being met, it can be deduced that any leader would understand that issuing such orders would have resulted in these consequences hence, meeting the criteria of dolus directus of the second degree.
There is however, no one test or definition for dolus eventualis. Different tests or definitions have been put forward and adopted by courts at different times and in different jurisdictions.[24]Broadly speaking, dolus eventualis exists where a person is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and accepts such an outcome by reconciling himself or herself with it or consenting to it.[25]
The failure of the International Criminal Court to address the persistent violations of the rights of Palestinian people and lack of accountability has led Israeli leaders and soldiers to believe they can operate with impunity, conduct military campaigns without respect for basic humanitarian regulations and ultimately, commit the most serious crime under international criminal law, genocide. Given its responsibility under the Rome Statute and its previously established jurisprudence on genocide, the ICC cannot continue to turn a blind eye towards growing evidence of Israel’s actions and intentions of genocide towards the Palestinian people in Gaza. The Court must open investigations into Israeli leaders and military commanders who, through action and intention, have orchestrated and participated in this specific crime. For international criminal law and the ICC to be an effective tool of accountability and justice, investigations must be conducted in a timely manner into all violations under the court’s jurisdiction where evidence exists.
AUTHOR
AYLA SAFI KHAN
RESEARCH ASSOCIATE, RCIL & HR
[1] Prosecutor v. Kambanda, Judgment and Sentence, ICTR-97-23-S, 4 Sept. 1998, para. 16.
[2] Article II of the Genocide Convention, 1948; Prosecutor v. Jelisic, Judgment, IT-95-10-T, 14 Dec. 1999, paras. 85-86.
[3] ICTY, The Prosecutor v. Zoran Kupreskic et al., IT 95-16-T, 14 January 2000, para. 636.
[4] ICC, Prosecutor v Al Bashir (Decision on Application for an Arrest Warrant) ICC-02/05 01/09, PT Ch I (4 March 2009) para 139; Prosecutor v. Kambanda, Judgement and Sentence, ICTR-97-23-S, 4 Sept. 1998, para. 16.
[5] Prosecutor v. Jelisic, Judgment, IT-95-10-T, 14 Dec. 1999, para. 66.
[6] Prosecutor v Akayesu, ICTR-96-4-T, 2 Sept. 1998, para. 497, Prosecutor v. Jelisić, ICTY A. Ch., 5 July 2001, para. 82.
[7] N Gordon and N Perugini, Human Shields: A History of People in the Line of Fire (University of California Press 2020) 167-217, speaking about the erosion of the category of civilian, defines De-Civilianization as: “the systematic attempts, through the mobilisation of different legal and political discourses, to deprive an entire population of civilian protections in order to justify the systematic use of lethal violence against them.”
[8] Prosecutor v. Vujadin Popović and others (Appeal Judgement) IT-05-88-T (30 January 2015) [823].
[9] Ministry of Foreign Affairs, ‘Hamas-Israel Conflict 2023: Key Legal Aspects’ (State of Israel, 2 November 2023)
<www.gov.il/BlobFolder/news/hamas-israel-conflict2023-key-legalaspects/en/English_Documents_HamasIsrael%20Conflict%202023%20-%20Some%20Factual%20and%20Legal%20Aspects%20%20Israel%20Ministry%20of%20Foreign%20Affairs%20 (2%20NOV%202023).pdf> accessed 12 February 2024.
[10] https://www.commondreams.org/news/israel-genocidal-statements-2666930604
[11] https://www.aljazeera.com/opinions/2024/1/14/intent-in-the-genocide-case-against-israel-is-not-hard-to-prove
[12] https://www.middleeastmonitor.com/20231120-israel-knesset-deputy-speaker-calls-for-burning-gaza/
[13] https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza
[14] United Nations, Human Rights Office of the High Commissioner Update Report, Six-month update report on the human rights situation in Gaza: 1 November 2023 to 30 April 2024 (8 November 2024), 17 <https://www.ohchr.org/sites/default/files/documents/countries/opt/20241106-Gaza-Update-Report-OPT.pdf>
[15] https://www.huffpost.com/entry/israel-gaza-isaac-herzog_n_65295ee8e4b03ea0c004e2a8
[16] George P. Fletcher, Jens David Ohlin, Reclaiming Fundamental Principles of Criminal Law in the Darfur Case,
Journal of International Criminal Justice, Volume 3, Issue 3, July 2005, Pages 539–561.
[17] Prosecutor v. Jelisić, ICTY A. Ch., 5 July 2001, para. 42
[18] Prosecutor v Akayesu, Judgement ICTR-96-4-T, 2 Sept.1998.
[19] Gerhard Werle, Principles of International Criminal Law, (2007) Journal of International Criminal Justice 5(4).
[20]ESER, A., “Mental Elements–Mistakes of Fact and Law“, in The Rome Statute of the International Criminal Court: A Commentary, Oxford, Oxford University Press, 2002, Vol. I, pp. 899 and 900.
[21] The Prosecutor v. Dusko Tadić, IT-94-1-A, 15 July 1999, paras. 219 and 220.
[22] ME Badar, ‘The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective’ (2008) 19 Crim L Forum 473, 486.
[23] ICTY, The Prosecutor v. Dusko Tadic, IT-94-1-A, 15 July 1999, paras 219-22.
[24] Fletcher, Rethinking Criminal Law p. 445-6.
[25] The Prosecutor v. Milomir Stakić, IT-97-24-T, 31 July 2003, para. 587.