On Sept. 16, the Independent International Commission of Inquiry on the Occupied Palestinian Territory (COI) published a report finding that Israel has committed genocide against Palestinians in Gaza. The Commission concluded that Israel has committed four of the five underlying acts of genocide listed in the 1948 Genocide Convention (killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, and imposing measures intended to prevent births), and that it has done so with the specific intent to destroy Palestinians as a group. The commission’s findings build on its earlier reports that considered crimes against humanity and war crimes.
As experts take time to digest the detailed factual findings and legal assessments within the report, the headline finding of genocide is attracting global attention. In the following Q & A, I aim to provide some context for those seeking to understand what it does (and does not) mean for a commission like this to make a genocide determination.
How did the Commission reach its finding?
The Commission, made up of three independent human rights experts, was established by the UN Human Rights Council in 2021 to investigate violations of international law in “the Occupied Palestinian Territory, including East Jerusalem, and in Israel.” Since the Hamas attacks on Israel on October 7, 2023, the COI has issued three reports and three papers on international law violations committed by all parties. Its September 16 report draws on the factual findings it made in those prior reports that are relevant to the determination of genocide. The COI investigations are based on information drawn from first-hand interviews with victims and witnesses, as well as both inculpatory and exculpatory information collected from States, U.N. agencies, civil society, and open sources that are reviewed and analyzed with a view to its evidentiary value in legal proceedings (COI, FAQ, p.3).
What impact will this genocide determination have on Israel’s military activities in Gaza?
Although genocide determinations have immense meaning for victims and survivors, there has yet to be any example of a perpetrator who stopped genocidal activities in response to an international genocide determination per se. Typically, both States and individuals accused of genocide deny that they have committed genocide, and frequently argue that they are simply responding to threats they face. They often denigrate whoever made the determination, and seek allies to join them in casting the finding as driven by bias against them. On Tuesday, an Israeli spokesman said the U.N. report was “fake.” Since it launched its war in Gaza, the Israeli government has said the target of its military operations is Hamas, not the Palestinian people.
Is a genocide determination “just words”?
Yes and no. A genocide determination cannot change behavior in and of itself, but it can help catalyze behavioral change, depending on how effectively other States and actors use it. Right now, for example, the European Union is discussing the partial suspension of its trade association agreement with Israel. Thus far, the measure has not had enough votes to pass. EU States that support the measure can now use the genocide determination as a further reason to push reluctant States to vote in favor. The hope is that, over time, such sanctioning by other States will make it too costly for Israel to continue its current actions in Gaza. Moreover, for victims and survivors, there is intrinsic value in having an external body validate the harms they face.
What impact will this genocide determination have on other States?
Every State has an obligation under international law to prevent genocide. This obligation kicks in as soon as a State “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” (International Court of Justice (ICJ), Bosnia v. Serbia, para. 431). That risk threshold was present in Gaza long before the U.N. Commission released its report (views on exactly when this threshold was met vary, but certainly by January 2024, the International Court of Justice put all States on notice of this risk). In theory then, States should already have been working to prevent genocide in Gaza. Some governments have been doing this (see, for example, Germany’s decision last month to halt the export of military equipment to Israel for use in Gaza). Other countries, including the United States, have not, and, in some of those cases, the Commission’s finding could help officials inside the government push harder for prevention policies.
What impact will this genocide determination have on the U.S. government?
Contrary to popular perception, a determination of genocide, even by the U.S. government itself, does not automatically change U.S. policy toward a State that is committing genocide. In Samantha Power’s widely read book, A Problem from Hell, she excoriated the Clinton administration for equivocating on the question of genocide, and taking no action to stop the genocide unfolding in Rwanda in 1994. Subsequently, many human rights advocates imagined a counterfactual in which a U.S. administration that made a determination of genocide while atrocities were ongoing would be compelled to stop the atrocities, and be effective at doing so. Subsequent real-world case studies, with U.S. determinations in relation to genocide committed by Sudan, the Islamic State, Myanmar, and most recently the Sudanese Rapid Support Forces, show that the link between a genocide determination and improved outcomes for those facing atrocities is tenuous. In these cases, declaring the situation a genocide helped galvanize media attention for a time. It also gave concerned members of the public and officials inside government an additional lever to use to push for policy actions. Yet the incremental benefits of public condemnations and targeted sanctions, for example, did not match the expectations of victims and survivors, or of the general public, in terms of what they hoped an official genocide determination would deliver.
How will the new determination affect the case that South Africa has brought against Israel at the International Court of Justice?
We will likely see the greatest impact from this COI determination in the ongoing proceedings at the ICJ.The ICJ does not do its own fact-finding; it relies on the parties before it to bring evidence to the Court. In practice, this approach often means that the ICJ relies on the findings of other U.N. bodies, international institutions, or credible NGOs. In the first ICJ case brought against a State under the Genocide Convention, (Bosnia v. Serbia, which remains the only Genocide Convention case thus far in which the ICJ reached a final judgment), the Court relied heavily on the findings of the International Criminal Tribunal of the former Yugoslavia (Justice Richard Goldstone and I wrote about the problems of a civil court relying on a criminal court’s findings here). In the Gaza situation, it is unlikely that there will be any international criminal law findings for the ICJ to turn to in advance of its decision (the ICJ decision is expected to come out before the ICC cases against Israeli officials proceed to trial). This then makes the COI’s findings a crucial source of evidence for the ICJ in making its determination of Israeli responsibility under the Genocide Convention.
Does the U.N. Commission finding mean that Israeli Prime Minister Benjamin Netanyahu and other Israeli officials are guilty of genocide?
That is a question for the International Criminal Court, and not something that the COI can speak to. Determining whether any particular individual is guilty of genocide is something that can only happen through a criminal trial and requires proof that meets the criminal law standard of “beyond a reasonable doubt.” By contrast, the COI looks at the responsibility of the State using a “reasonable grounds to conclude” standard (COI, para 7).
