Gaza, a genocide in progress and three legal questions

Three years after the attack of 7 October 2023 and almost a year after the ceasefire of 10 October 2025, the Gaza Ministry of Health counts more than 74,000 dead and reports more than 1,400 deaths since the truce. AcidReport maintains that the genocide in Gaza is continuing. No court has yet declared it, and for that reason this episode does not content itself with decreeing it. In the light of the 1948 Convention and the case law of the International Court of Justice, it examines what the various bodies have decided and what none of them has decided, and it submits the claim to three questions, the duty to prevent, the standard of intent and the continuing character of the acts, against the best defence that has been put forward. The accusation targets a state, a government and leaders identified by name, and no religious or ethnic affiliation.

The question badly put

Public debate on Gaza revolves around a question that seems simple and is badly put. People ask whether what is happening is or is not a genocide, as if the word were a moral verdict that each person grants or withdraws according to loyalties, and the answers divide by camp with the regularity of opinion polls. Raphael Lemkin coined the term in 1944 to name a crime that the law had no means of designating, and the Convention adopted on 9 December 1948 gave it a technical definition, made of elements that are either proved or not proved. Its Article II requires two things at once, the commission of one of five acts, among them killing members of the group, causing them serious bodily or mental harm and deliberately inflicting on them conditions of life calculated to bring about their physical destruction in whole or in part, and the intent to destroy a national, ethnical, racial or religious group as such.

Article I adds what almost no one quotes, since it obliges the states parties to prevent and to punish the crime, and not merely to sanction it once committed. Three distinct questions follow from that architecture, and the debate mixes them endlessly. The first concerns the duty of states that know, and the moment at which it arises. The second concerns the standard by which intent is proved. Time occupies the third, because a crime defined by the destruction of a group can be committed over years, and the question is whether it is still being committed. AcidReport answers all three, after establishing precisely what the courts have decided, since that is where most errors are made.

What the courts have decided and what they have not

South Africa brought Israel before the International Court of Justice on 29 December 2023, under the Convention. On 26 January 2024 the Court found plausible the rights that South Africa claimed for the Palestinians of Gaza, among them the right to be protected from acts of genocide, found a real and imminent risk of irreparable prejudice and ordered six provisional measures, among them one requiring Israel to prevent the acts covered by the Convention and another requiring it to permit humanitarian assistance to enter. It supplemented those measures with two further orders, on 28 March and 24 May 2024. The January order does not prejudge the merits, and plausible means that the rights exist and may be harmed, not that the violation is proved.

The merits proceedings advance slowly. Israel filed its counter-memorial on 12 March 2026, and on 21 May the reply of South Africa was set for 22 November 2027 and Israel’s rejoinder for 22 May 2029. The International Criminal Court, which tries individuals, issued on 21 November 2024 arrest warrants against Benjamin Netanyahu and Yoav Gallant for war crimes and crimes against humanity, among them starvation as a method of warfare. None of them charges genocide. Whoever says that this Court has declared one is wrong, as is whoever says that the International Court of Justice has dismissed it.

Positions without judicial force exist. The UN Commission of Inquiry concluded on 16 September 2025 that Israel is responsible for genocide and for failing to prevent or punish it, and called on states to stop arms transfers. Amnesty International has maintained this since December 2024, and Special Rapporteur Francesca Albanese saw reasonable grounds from March. The International Association of Genocide Scholars adopted it with 86 % of the votes cast, and over five hundred scholars challenged it.

First question, the duty to prevent

The judgment that fixes the doctrine is the one the Court itself delivered on 26 February 2007 in the case between Bosnia and Herzegovina and Serbia and Montenegro. That judgment, which recognised the Srebrenica massacre of July 1995 as genocide and declared that Serbia had failed to prevent it, establishes the moment at which the duty arises.

A State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. (ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, judgment of 26 February 2007, para. 431)

The duty waits neither for a judgment nor for certainty. It is triggered by knowledge of a serious risk and requires the use of the means available, to an extent that depends on each state’s capacity to influence the perpetrator. It is an obligation of diligence and not of result. Since 26 January 2024 there has also been an assessment by the Court itself, which held the risk of irreparable prejudice to be real and imminent and which comes close to that threshold without being identical to it.

One must say here what the doctrine specifies and what a partisan would omit. According to the same judgment, a state is responsible for a breach of the duty to prevent only if genocide was in fact committed. The duty arises from the risk, but responsibility for violating it depends on the crime existing, and that is what the Court must settle on the merits. AcidReport therefore does not claim that the United States, Germany or any other supplier of arms has incurred legal responsibility today. It claims that their obligation to act has existed since the risk became known, that few capacities for influence exceed that of the arms supplier, and that waiting for the judgment inverts the logic of a treaty conceived to prevent and not only to judge.

Second question, intent and its standard

Intent is the ground on which the case is decided, because the acts are widely documented and the dispute turns on their meaning. The Court required in the 2007 judgment, and repeated in the one of 3 February 2015 between Croatia and Serbia, that the intent to destroy the group be the only inference that could reasonably be drawn from the conduct of the state. In the Croatian case the judges held the killing and serious harm to members of the Serb group to be established, and rejected genocide because the whole of the facts admitted an explanation other than genocidal intent. That precedent is the weapon of Israel’s defence, and it is a serious weapon.

The defence says the following. Hamas fights among the civilian population, killed about 1,200 people on 7 October 2023, according to the revised figure reported by NPR, and took some 250 hostages, and a war to destroy that organisation explains by itself many civilian victims and extensive urban devastation. Israel states that it issued evacuation orders and facilitates aid, and invokes self-defence, to which South Africa replies that this right is no defence against genocide. Israeli human rights organisations are also among those who support the qualification.

Against that hypothesis, those who support the qualification accumulate evidence of another kind. There are the statements of leaders, from Minister Gallant announcing on 9 October 2023 a complete siege with no electricity, no food and no fuel, to President Herzog stating four days later that an entire nation was responsible, words that South Africa’s application cites and that Israel presents as wartime rhetoric taken out of context. There is the pattern of conduct, the destruction of hospitals, water infrastructure and homes, the blocking of aid and the famine that the IPC system declared in August 2025 in the Gaza governorate. Amnesty International maintains that this whole excludes any explanation other than the intent to destroy the Palestinians of Gaza.

My reading is that the Croatian standard is met when the hypothesis of a war with military objectives and collateral damage ceases to explain the whole of the behaviour, and that this point is reached through the combination of the statements, the siege, the systematic destruction of what makes life possible and the persistence of those conditions after the large-scale fighting. That reading is an inference from the whole and not direct proof, and it carries a cost. If the Court were to demand stricter proof, or accept that the aim of eliminating Hamas reasonably explains the conduct, AcidReport will have maintained a qualification that the tribunal rejects. The risk is assumed, because waiting for a judgment that will come years later amounts to renouncing any qualification while the facts are unfolding.

If the Court were one day to conclude that intent is not proved, attacks on civilians, persecution and starvation as a method of warfare would not become lawful for that reason. The qualification of genocide does not exhaust responsibility, and arguing over it does not authorise postponing the rest.

Third question, what the ceasefire did not stop

On 10 October 2025 the ceasefire came into force and the Israeli hostages still alive were released. The intensity of the fighting fell markedly, as the AP agency acknowledges, and Israel maintains that Hamas is rearming and violating the agreement, and that this is why it responds with strikes. The dead, all the same, keep accumulating.

Since the ceasefire of 10 October 2025, more than 1,400 Palestinians have been killed in Israeli attacks, according to the Gaza Ministry of Health. (AP, 30 September 2026)

The same agency counts five Israeli soldiers killed in attacks by militants over that period. The Ministry of Health, which answers to the authorities of the enclave, recorded on 30 September 74,032 dead and 175,142 wounded. AP regards those records as detailed and generally reliable, and Brown University judges the figure probably lower than the reality. An investigation by +972 Magazine, Local Call and The Guardian in August 2025 revealed that a database of Israeli military intelligence recorded 83 % civilians among the identified dead, a reading that the Israeli outlet Israel Hayom disputed.

Living conditions tell a parallel story. On 19 December 2025 the IPC system announced that the famine had been reversed thanks to the entry of aid after the ceasefire, kept the whole enclave in the emergency phase and warned that the improvements were fragile. Israel states, through COGAT, the military body that coordinates aid, that between 600 and 800 trucks enter each day, and Refugees International replied that those coordinated by the UN were around one hundred. On 20 August 2026 the UN warned that 94 % of the population needs help to find shelter and meet basic needs, and an analysis by the UN satellite centre, cited by Al Jazeera, indicated that destroyed structures had increased by 9 % since the truce. On 27 November 2025 Amnesty International maintained that Israel was continuing to inflict conditions of life calculated to destroy the population physically, with no sign of a change of intent.

Article II lists those conditions among the constituent acts, and such an act is not exhausted in a single episode, since it lasts as long as the conditions and the will that sustains them. The contrary thesis deserves its weight. Whoever holds that the genocide ended with the ceasefire invokes the end of the declared famine, more aid and less fighting, and reads the 1,400 dead as the violence of a fragile truce. Everything depends on whether the present conditions close a campaign or continue it. AcidReport reads them as its continuation, for verifiable reasons. Controlled access to what is needed to survive persists, a physical destruction that does not stop persists, and Amnesty International observes no sign of a change of intent, without any act reported by the sources consulted contradicting it.

The time of justice

The legal response always arrives late, and the figures show it. Bosnia and Herzegovina filed its application against Serbia on 20 March 1993 and the judgment came on 26 February 2007, almost fourteen years later and almost twelve after Srebrenica. For Croatia the application dates from 1999 and the judgment from 2015. The Gambia brought Myanmar before the Court in November 2019, the hearings on the merits began on 12 January 2026 and, as of 24 September 2026, there is no judgment. In Israel’s case, with a reply fixed for the end of 2027 and a rejoinder for 2029, a judgment on the merits before 2030 seems unlikely, a personal estimate that appears in no calendar of the Court.

That slowness is a structural property of international justice and it explains the sense of Article I. If the Convention obliged only to punish, its effectiveness would be measured in decades, after the dead. The obligation to prevent exists so that states act in the interval. Meanwhile the United States sanctions judges and the prosecutor of the International Criminal Court, Secretary of State Marco Rubio sanctioned the rapporteur who documented the case, and Germany, which had restricted certain arms exports to Israel, resumed them on 17 November 2025 citing the ceasefire, despite the request of the UN Commission to stop those transfers. That distance between what the law demands and what governments do is a major political fact, and the absence of a judgment serves as an alibi for not deciding.

What AcidReport maintains

In October 2026, AcidReport maintains that the genocide in Gaza, ongoing since October 2023, is continuing. It maintains this as a reasoned conclusion and not as a verdict, since no court has declared the existence of the crime and none its non-existence. The three questions lead to the same claim. On the first, the duty to prevent already weighs on states that know the risk, and the Court itself found in 2024 a real and imminent risk of irreparable prejudice, which comes close to the threshold of Article I. Regarding the second, the hypothesis of the war against Hamas suffices to explain the first weeks and proves insufficient to explain the whole of the conduct, so that genocidal intent is, in my judgment, the only reasonable inference. As for the third, the destructive conditions that the UN and Amnesty International describe continue after the ceasefire, and that is why the crime, if it exists, continues.

Two things would change this conclusion, and they are named so that it can be put to the test. A judgment of the International Court of Justice holding intent not proved would oblige a correction of the qualification, without thereby legitimising the war crimes and crimes against humanity already documented. A verifiable change in conditions, with free access to aid, reconstruction made possible and an end to the attacks, would oblige one to say that the crime has ended. Until one of the two occurs, the criterion that the Convention imposes is that of whoever knows the risk and must act. The Convention does not make the duty to act conditional on a judgment, and a word pronounced only after the verdict would arrive when it could no longer serve to prevent.

This series maintains its line. The accusation targets a state, a government and leaders identified by their names and their acts, and excludes any collective attribution to Jews, among whom are some of the most consistent critics of that policy. Three years after 7 October, the bodies that have looked closely say the same thing, the court that must decide is still writing its calendar, and in Gaza, meanwhile, the dead continue to be counted…

G.S.

Sources

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History of Zionism

EP10 – Gaza, a genocide in progress since October 2023

The question badly put

What the courts have decided and what they have not

First question, the duty to prevent

Second question, intent and its standard

Third question, what the ceasefire did not stop

The time of justice

What AcidReport maintains

Sources

Leave a comment Cancel

The question badly put

What the courts have decided and what they have not

First question, the duty to prevent

Second question, intent and its standard

Third question, what the ceasefire did not stop

The time of justice

What AcidReport maintains

Sources

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