Israel’s Unfolding Crime of Genocide of the Palestinian People & U.S. Failure to Prevent and Complicity in Genocide

The Center for Constitutional Rights is a legal organization that works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. For more information, visit: https://ccrjustice.org/.

“I am here like an olive tree. We will never leave our homeland.”

I. INTRODUCTION Raji Sourani1

There is plausible and credible case, based on powerful factual evidence, that Israel is attempting to commit, if not actively committing, the crime of genocide in the occupied Palestinian territory, and specifically against the Palestinian people in the Gaza Strip.2 The gravest of crimes under international law, genocide refers to specific actions – such as killing or deliberately inflicting conditions of life calculated to bring about the destruction of the group in whole or in part – taken with the intention of destroying, in whole or in part, the group targeted, including on ethnic or national grounds. Since October 7, 2023, Israel has escalated its 16-year closure over 2.2 million Palestinians in Gaza where approximately half the population is under 18, indiscriminately and repeatedly bombing civilians while cutting off access to all basic necessities, including food, water, electricity, and medical supplies, and on October 13th ordered a forced “evacuation” of 1.1 million Palestinians out of northern Gaza. As this briefing paper was being finalized on the evening of October 17, 2023, there were an estimated 500 fatalities following a reported Israeli airstrike at Al-Ahli Arab Hospital in Gaza City

1 Raji Sourani, Founder and Director of the Palestinian Center for Human Rights (PCHR) in Gaza, when asked if he would leave his home in Gaza City in response to the bombing and the “evacuation” order. “On my body, I have no plan,” explaining that his family has lived in Gaza/Palestine for eight centuries. “We Will Never Leave”: Human Rights Lawyer Raji Sourani in Gaza City Refuses to be “Good Victim,” Democracy Now (Oct. 17, 2023), https://www.democracynow.org/2023/10/17/raji_sourani_gaza. 2 The Center for Constitutional Rights (CCR) has produced this analysis in the midst of a situation still unfolding with devastating speed, in response to questions from journalists, activists and within the legal community. This analysis is necessarily incomplete, therefore. However, given the proclamations about the trajectory and intensity of the upcoming Israeli ground invasion and bombing of Gaza, we fear the unfolding genocide will not abate and may well intensify. CCR recognizes that Palestinians and Palestinian human rights organizations have long warned of the likelihood of genocide being the inevitable frame through which to assess the widespread and systematic violations being committed against their people across the occupied Palestinian territory, and urged States to take action before it advanced. For such a recent analysis of Gaza and genocide from a sociological perspective, see Mohammed Nijim, Genocide in Palestine: Gaza as a case study, 27 International Journal of Human Rights 165 (2023). We credit and honor Palestinian organizations such as Al-Haq, Al Mezan Center for Human Rights, Defense for Children International-Palestine and PCHR, and many others for their tireless work under dangerous and unimaginably difficult conditions to gather information included in this paper and for their analysis of the human rights violations and crimes being committed by Israel and its officials. We also honor the people of Gaza who, despite being under constant bombardment with dwindling access to electricity, have nevertheless written, tweeted, posted, made calls, or otherwise reported on the Israeli assault, including when it has wiped out their own families.

where many were seeking shelter. Excluding those killed at Al-Ahli Hospital, as of October 17, 2023, the Palestinian Ministry of Health has confirmed that 3,000 Palestinians have already been killed, including at least 1,030 children and hundreds of family units; in 11 days, more than 12,500 people have been injured, one million Palestinians displaced, and thousands of homes destroyed, with reports of 1,200 missing people believed to be trapped under the rubble. As set forth below in both the detailed factual overview and the Findings, Israeli officials have made statements revealing that these actions are for the purpose of destroying the Palestinian population in Gaza.3 This presents a plausible and credible case of a breach of the Genocide Convention. Like both Palestine and Israel, the United States is a signatory to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the first human rights treaty adopted by the United Nations General Assembly and considered the building block of the international human rights system.4 The Genocide Convention places a duty on all 153 signatories to both prevent and punish genocide.5 The Convention criminalizes not just the commission of genocide, but incitement and attempts to commit genocide, as well as complicity in genocide, which is discussed below in detail. Israel, the United States, and indeed, all States, must immediately comply with their obligations under the Convention. The United States has been obligated, from the time learning of the serious risk of genocide of the Palestinian people, to exercise its influence on Israel to prevent the crime. The United States is not only failing to uphold its obligation to prevent the commission of genocide, but there is a plausible and credible case to be made that the United States’ actions to further the Israeli military operation, closure, and campaign against the Palestinian population in Gaza, rise to the level of complicity in the crime under international law. The United States – and U.S. citizens, including and up to the President – can be held responsible for their role in furthering genocide. Any individual who commits, incites, conspires to commit or is complicit in genocide can be held liable under international law – including before the International Criminal Court (“ICC”),6 which already has an open investigation into crimes being

3 4 This document includes facts and events through October 17, 2023, 00:00 EST. Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on December 9, 1948 as General Assembly Resolution 260, and entered into force on January 12, 1951 (“Genocide Convention”), https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021English.pdf. Israel ratified in 1950, the United States became a party in 1988, and Palestine acceded in 2014. 5 As the International Court of Justice made clear in its first pronouncement on the Genocide Convention, “the contracting states do not have any interests of heir own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which ar the raison d’être of the convention.” Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15, 23, https://www.icj-cij.org/case/12. 6 The Rome Statute of the International Criminal Court, art. 6, opened for signature July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) (“Rome Statute”), http://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.

committed in Palestine7 – or under U.S. law.8 The International Court of Justice (“ICJ,”) also known as the World Court, which is empowered to resolve disputes between signatory States to the Genocide Convention, can also issue provisional measures to ensure compliance with the Convention in the case of an unfolding genocide, including if it finds that breaches of the Convention are “plausible.”9 Additionally, because the prohibition against genocide is recognized as a crime under customary international law, as what is known as a jus cogens norm with erga omnes obligations, it is binding on all countries, and can be prosecuted under the principle of universal jurisdiction. Israel’s invocation of self-defense for the campaign it has unleashed against the entire Palestinian population in Gaza, and the full credit the United States gives it when affirming its unconditional support, does not negate genocidal intent or serve as a justification for its crimes under international law. Israel launched its most recent war on Gaza in response to an attack by fighters from Hamas’ military wing, the al Qassam brigade, which killed at least 1,400 people, the majority of whom were Israeli civilians, and took an estimated 200 people from Israel into Gaza as hostages. This targeting or wilful killing of civilians and taking of civilian hostages constitute violations of international humanitarian law, including the law prohibiting war crimes, and should be addressed through appropriate mechanisms for accountability. Yet, as the law makes clear, “no State or individual can ever be permitted to justify genocide in the name of self-defence.”10 We also make clear that nothing in this analysis should be understood as minimizing the prior or ongoing crimes and gross human rights violations by Israel that are separate from the crime of genocide, including war crimes and the crimes against humanity of apartheid, persecution and extermination that have been separately well-documented by U.S., international and Israeli human rights groups. These serious violations impose obligations on States to take all measures possible to prevent their commission and to stop recurrence through accountability mechanisms at both the State and individual level. With the support of and endorsement by the United States, Israel has enjoyed impunity for such crimes. In the absence of accountability, we have now reached the point of genocide. All States must now – finally – act, including the United States, to end and address all of these crimes.

7 Pre-Trial Chamber I, Situation in the State of Palestine, ICC-01/18-143, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ (Feb. 5, 2021), https://www.icccpi.int/court-record/icc-01/18-143. 8 The United States implemented its obligations under the Genocide Convention at 18 U.S.C. § 1091. This statute imposes individual criminal responsibility for commission, incitement, attempt, and conspiracy to commit genocide; aiding and abetting is a mode of liability generally applicable to the U.S. criminal code. See 18 U.S.C. §§ 2(a) and 2(b). 9 See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, I.C.J. Reports 2020-2021 (Jan. 23, 2020), paras. 44, 56, https://www.icjcij.org/sites/default/files/case-related/178/178-20200123-ORD-01-00-EN.pdf; Genocide Convention, Article IX. 10 See William A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press 2009) at p. 395; Prosecutor v. Martić (Case No. IT-95-11-R61), Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 March 1996, para. 17.

Immediately, the United States must take all available measures to secure a ceasefire, to pressure Israel to end all military operations, and to ensure the provision of food, water, medical supplies, emergency housing, and other humanitarian assistance to Palestinians in Gaza. The United States must end all military aid, as well as political, economic and diplomatic support to Israel until Israel comes into compliance with international law. In addition, the international community must achieve the immediate end of Israel’s 16-year closure of the Gaza Strip, Israel’s 56-year military occupation of the occupied Palestinian territory (the West Bank, including East Jerusalem, and Gaza), and the apartheid regime Israel administers across historic Palestine.

II. THE CRIME OF GENOCIDE

“I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we act accordingly” – Israeli Defense Minister Yoav Gallant 11

In the aftermath of World War II and the horror of the Holocaust, the Genocide Convention was adopted to deter and prevent such horrors in the future, and, failing that, to hold those responsible accountable. In its first opinion examining the scope, purpose and obligations under the Genocide Convention, the ICJ found “its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality.”12 The Genocide Convention recognizes responsibility at both the State level and of individuals, and calls for accountability at both levels. The Genocide Convention defines genocide as committing specified acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”13 The “group” is what must be targeted,14 on grounds including nationality or ethnicity; and it is the “group” that is protected.15 The “part” targeted for destruction can be represented by a subgroup, for example, in a specific geographic area.16 Palestinians living in Gaza, as part of the Palestinian population, can constitute the targeted group for the purposes of the Genocide Convention.

11 Israel’s Defense Minister – we are fighting ‘human animals’, Bloomberg Television (Oct. 9, 2023), https://www.youtube.com/watch?v=3x02rCeusCI; see also “We are fighting human animals” said Israeli Defen[s]e Minister Yoav Gallant, No Comment TV (Oct. 9, 2023), https://www.youtube.com/watch?v=ZbPdR3E4hCk. 12 Reservations to the Convention on Genocide, supra note 5, at p. 23. 13 14 15 Genocide Convention, art. 2, chapeau. See, e.g., Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Judgment, para. 165 (Jan. 27, 2000). See Prosecutor v. Krstić, Case No. IT-98-33, Appellate Chamber Judgment, Partial Dissenting Opinion of Judge Shahabudden, para. 50 (Apr. 19, 2004) (explaining that in the context of the massacre of 8,000 Bosnian Muslims at Srebrenica, “A group is constituted by characteristics – often intangible – binding together a collection of people as a social unit”). 16 This was the case with regards to the Srebrenica genocide, with the “group” for genocide purposes being Bosnian Muslims, and the “part” of the group represented by the Bosnian Muslim community of Srebrenica.

Genocide, like the crime against humanity of persecution, is a crime distinguished by the specific intent to target a group on recognized grounds through a series of acts often reflected in and achieved through State policies. In the case of genocide, the protected group itself is targeted for destruction. As the General Assembly underscored in 1946, the “denial of the right of existence shocks the conscience of [hu]mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.”17 The specific intent to destroy a group, which can be inferred from the general context,18 is incompatible with the argument of self-defense. International criminal law scholars agree that the gravity and specificity of the crime of genocide – the perpetrator must intend to destroy a group – makes inconceivable the justification of defensive force under Article 31(1)(c) of the Rome Statute.19 A group’s very existence (in this case Palestinians in Gaza) would thus need to be characterized as an imminent unlawful threat, which is an untenable proposition here. Further, the right of self-defense is bound by the principles of international law,20 as well as the rule of proportionality, and “cannot comprise retaliatory or punitive action. For this reason, no State or individual can ever be permitted to justify genocide in the name of self-defence.”21 In addition to prohibiting the commission of genocide, the Genocide Convention prohibits conspiring, inciting, attempting to commit, and complicity in, genocide. The International Criminal Tribunal for Rwanda (“ICTR”) and the International Criminal Tribunal for the former Yugoslavia (“ICTY”) have addressed different forms of complicity to the crime of genocide, including aiding and abetting genocide, as well as conspiracy and joint criminal enterprise.22 Mass killings are one means by which genocide is committed, but that is not the only method by which a group is “destroyed” or exterminated (in whole or in part). Raphael Lemkin, the PolishJewish lawyer credited with coining the term, said that genocide often includes “a coordinated plan aimed at destruction of the essential foundations of the life of national groups so that these groups

17 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 3, para. 69 (quoting U.N.G.A. Res. 96(I) (Dec. 11, 1946)) (“The Gambia Order”). 18 19 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgment (Sept. 2, 1998), at 523. See, e.g. Hannah Tonkin, Defense Force Under the Rome Statute, 6 Melbourne Journal of International Law (2005); see also Schabas, Genocide in International Law: The Crime of Crimes, Chapter 7 (“Defences to Genocide”). 20 para. 42. 21 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J. Reports 1996, p. 226, See Schabas, Genocide in International Law: The Crime of Crimes at p. 395; Prosecutor v. Martić (Case No. IT-95-11-R61), Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 March 1996, para. 17. 22 See, e.g, Prosecutor v. Popović et al, Case No. IT-05-88-A, Appeal Judgment (January 30, 2015) (conspiracy to commit genocide and aiding and abetting the crime) Prosecutor v. Ndindabahizi, Case No. ICTR-01-71-A, Judgment, ¶ 122 (Jan. 16, 2007) (aiding and abetting genocide); Prosecutor v. Ntagerura, Case No. ICTR-99-46-A, Judgment, ¶ 370 (July 7, 2006) (same); Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment, ¶ 180 (Jan. 27, 2000) (same).

wither and die like plants that have suffered a blight . . . . It may be accomplished by wiping out all basis of personal security, liberty, health and dignity.”23 More than fifty years after Lemkin’s foundational observation, the ICTR rendered the first genocide conviction by an international court and held that in addition to killings, “subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below the minimum requirement” constituted the crime of genocide as “methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.”24 As a leading genocide scholar has determined, settler colonial regimes – such as Israel – are structured, through their policies and expansionist planning, to facilitate the commisison of genocide, and often undertake “genocidal moments” in response to the resistance of a colonized or occupied people.25

A. Elements of Genocide

Article II of the Genocide Convention defines the crime of genocide by two main elements: (1) specific underlying acts, and (2) intent. The same elements define the crime of genocide in the statute of the ICC, as well as the ICTY and ICTR.26 Genocide is a crime whether committed in time of peace or war.27 That genocide takes place while a party is in an armed conflict with another group “can in no way be considered as an extenuating circumstance for it.”28 Specific Underlying Acts. The first element, specific underlying acts, include any of the following: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group.

23 24 Raphael Lemkin, Genocide – A Modern Crime, 4 Free World 39 (1945). See Akayesu Trial Judgment. The tribunal also held for the first time that rape and other forms of sexual violence could constitute forms of genocide when committed with the intent to destroy a group in whole or in part. 25 See A. Dirk Moses, An Antipodean Genocide? The Origins Of The Genocidal Moment In The Colonization Of Australia, 2 J. of Genocide Research 89 (2000). See generally A. Dirk Moses (ed.), Empire, Colony, Genocide: Conquest, Occupation and Subaltern Resistance in World History (Berghahn Books 2008). See also Haifa Rashed & Damien Short, Genocide and Settler Colonialism: Can a Lemkin-Inspired Genocide Perspective Aid Our Understanding of the Palestinian Situation?, 16 Int’l J. Hum. Rts. 1142 (2012). 26 See Rome Statute, art. 6; see also, Statute of the International Tribunal for the Former Yugoslavia, art. 4 (adopted by U.N. S/RES/827, May 25, 1993); Statute of the International Criminal Tribunal for Rwanda, art. 2 (adopted by U.N. S/RES/955, Nov. 8, 1994). 27 28 Genocide Convention, art. 1. Akayesu Trial Judgment, para. 128. Article 31(1)(c) of the Rome Statute provides in part: “The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility.”

As is particularly relevant to the unfolding situation in Gaza, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part is an act of genocide. The ICC Elements of Crimes, drawing from customary international law, defines the term “conditions of life” as including but not limited to “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”29 The tribunal examining the case of Srebrenica, for example, explained that such methods of destruction “do not immediately kill the members of the group, but . . . ultimately, seek their physical destruction” – proof that the result was actually attained is not required.30 Denying medical services,31 systematically expelling members of the group from their homes,32 and creating circumstances that would “lead to a slow death,” such as the lack of proper housing, water, shelter, clothing, hygiene, sanitation, or proper food including by subjecting people to a subsistence diet, or subjecting members of the group to excessive work or physical exertion,33 have all been found to be examples of “conditions of life” calculated to bring about a group’s physical destruction, in whole or in part, by international tribunals in the context of the Rwandan and Srebrenica genocides. “The actual nature of the conditions of life, the length of time that members of the group were subjected to them, and the characteristics of the group such as its vulnerability are illustrative factors to be considered in evaluating the criterion of probability.”34 For the purposes of genocide, killing is equated with murder, meaning causing the death by an act or omission, with the intent to either kill or cause serious bodily harm that would likely lead to death. There is no minimum number of people killed necessary to establish that genocide has been committed.35 Because of the obligation on states to take all measures to prevent genocide, as well as the prohibition on the “attempt” to commit genocide, state obligations are triggered when killings are done in a manner that reveals an intention to destroy a targeted population, in whole or in part. Examples of causing serious bodily or mental harm as an act of genocide include torture, inhumane or degrading treatment, interrogations combined with beatings, and harm that damages health or causes disfigurement or serious injury to the external or internal organs of members of the group,

29 30 31 32 See ICC Elements of Crimes, art. 6(b), n. 4. Prosecutor v. Popović et al., Case No. IT-05-88-T, Trial Judgment, para. 814 (Jun. 10, 2010). Id., para. 815; Musema Trial Judgment, para. 157. See, e.g., Prosecutor v. Brđanin, Case No. IT-99-36, Trial Judgment, para. 691 (Sept. 1, 2004); Prosecutor v. Stakić, Case No. IT-97-24-T, Trial Judgment, para. 517 (Jul. 31, 2003); AkayesuTrial Judgment, para. 506. 33 See, e.g., Akayesu Trial Judgment, para. 523; Stakić Trial Judgment, para. 517; Prosecutor v Karadžić, Case No. IT-95-5/18-T, Trial Judgment, para. 547 (Mar. 24, 2016). The ICJ also included the destruction of villages and homes, denial of access to food, shelter and other essentials of life, as well as mass killings as acts that affect “the right of existence of a protected group” under the Genocide Convention in the context of charges of genocide against the Rohingya. The Gambia Order, para. 71. 34 35 Karadžić Trial Judgment, para. 548. “There is no numeric threshold of victims necessary to establish genocide, even though the relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Article 2 of the Statute, is strong evidence of the intent to destroy a group, in whole or in part.” Prosecutor v Muhimana, Case No. ICTR-95-1BT, Judgment, para. 498 (Apr. 28 2005).

although the harm does not need to be permanent and irremediable.36 Threats of death and knowledge of impending death can constitute serious mental harm,37 with war crimes tribunals specifically recognizing the serious mental harm caused by the threat of indiscriminate killings: “[t]he fear of being captured, and, at the moment of the separation, the sense of utter helplessness and extreme fear for their family and friends’ safety, is a traumatic experience from which one will not quickly – if ever – recover.”38 Torture, as an underlying act of genocide, means causing serious physical or mental harm, which can be done through physical injuries or by threats to harm or kill a person (or relative or loved one) in order to coerce or punish, with the intention of producing mental suffering such as fear.39 Deportation has also long been recognized as causing serious bodily or mental harm.40 Specific Intent. The second element – intent – requires that these acts be committed “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”41 Genocidal or specific intent means that the result of destroying the group (in whole or in part) is clearly intended; it is the group qua group (and not only certain individual members of the group) that must be targeted to be destroyed, in whole or in part.42 “In part” is understood as a substantial part of a particular group, which can be part of the larger group “within a geographically limited area.”43 This specific intent may be proven from the facts and circumstances of a case.44

36 37 Karadžić Trial Judgment, para. 545; Akayesu Trial Judgement, para. 502. In assessing the threat of death in the context of Srebrenica, the trial chamber found: “The suffering of men separated at Potocari or detained after their surrender or capture from the column of men leaving Srebrenica, knowing they were likely to be killed, constituted serious bodily and mental harm as an actus reus of genocide. It was of such a nature as to contribute or tend to contribute to the destruction of the group in that their suffering prevented these members from leading a normal and constructive life.” Prosecutor v Tolimir, No. IT-05-88/2-T, Judgment, paras. 75455 (Dec. 12, 2012). 38 Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Trial Judgment, para 647 (Jan. 17, 2005) (“Blagojević Trial Judgment”). 39 See, e.g., Akayesu Trial Judgment, para. 503, quoting Israeli Government Prosecutor General v. Adolph Eichmann, Jerusalem District Court, 12 Dec. 1961, ILR vol. 36 (1968) for the causes of serious bodily or mental harm of the group: “starvation, deportation and persecution […] and by their detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture.” 40 Blagojević Trial Judgment, para. 646 (citing Eichmann, p. 340). See also para. 650 (stating that “the forced displacement of women, children and elderly people was itself a traumatic experience” particularly when it followed fleeing from an area under a 5-day military offensive while being shot at, being separated from family, and seeing smoke rising from their homes, knowing the displacement was not temporary). 41 42 Genocide Convention, art. 2. See e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, para. 139 (“ICJ Croatia 2015 Judgment”). 43 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, at para. 126 (Feb. 26, 2007) (“ICJ Bosnia and Herzegovina Judgment”); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, para 199, https://www.icj-cij.org/case/118/judgments. 44 Prosecutor v. Jelisić, Case No. IT-95-10-A, Appeal Judgment, para. 47 (July 5, 2001) (“Jelisić Appeal Judgment”). In fact, explicit manifestations of criminal intent are “often rare in the context of criminal trials.” Inferring intent from relevant facts and circumstances, “prevents perpetrators from escaping convictions simply because such

Evidence of specific intent can include, but is not limited to: the general context, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, other culpable acts systematically directed against the same group, or the repetition of destructive and discriminatory acts.45 While forcible transfer is not deemed a stand-alone indicia of the intent to destroy, it is a relevant consideration when assessing genocidal intent.46 The existence of a plan or policy can also be a factor used to establish specific intent, but it is not required.47 Genocidal intent may also be inferred from public speeches and statements by officials.48 When considering a request for provisional measures in regard to the unfolding genocide of Rohingya in Myanmar (Burma), the ICJ looked at various United Nations fact-finding missions, reports and resolutions to assess whether it was “plausible” that the underlying acts and genocidal intent were satisfied, and specifically noted “the systematic stripping of human rights, the dehumanizing narratives and rhetoric, the methodical planning, mass killing, mass displacement, mass fear, overwhelming levels of brutality, combined with the physical destruction of the home of the targeted population, in every sense and on every level” to grant provisional measures.49

OCTOBER 13, 2023
Israeli Statements and Conduct Advancing Genocide

On October 13, Israeli President Isaac Herzog announced: “It’s an entire nation out there that is responsible. It’s not true – this rhetoric about civilians not aware, not involved, it’s absolutely not true.”182 Israel infantry released their first official account of ground raids into Gaza, with Israeli Prime Minister Netanyahu declaring: “We are striking our enemies with unprecedented might . . . I emphasise that this is only the beginning.”183 Minister of Energy and Infrastructure Israel Katz declared “All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”184 UN and international humanitarian organizations warned of the catastrophe that would result from Israel’s forcible relocation of Palestinians in Gaza, and appealed to rescind its evacuation order.185

179 The White House, Press Briefing by Press Secretary Karine Jean-Pierre and NSC Coordinator for Strategic Communications John Kirby (Oct. 12, 2023), https://www.whitehouse.gov/briefing-room/pressbriefings/2023/10/12/press-briefing-by-press-secretary-karine-jean-pierre-and-nsc-coordinator-for-strategiccommunications-john-kirby-21/. 180 Id. 181 Id. 182 The Lead with Jake Tapper, Transcripts, CNN (Oct. 13, 2023), https://transcripts.cnn.com/show/cg/date/2023-10-13/segment/02. See also, e.g., Paul Blumenthal, Israeli President Says There Are No Innocent Civilians in Gaza, HuffPost (Oct. 13, 2023), https://www.huffpost.com/entry/israel-gazaisaac-herzog_n_65295ee8e4b03ea0c004e2a8. 183 ‘Only the beginning’ says Netanyahu as Israel makes first raids into Gaza, Reuters (Oct. 13, 2023), https://www.reuters.com/world/middle-east/now-is-time-war-says-israels-military-chief-2023-10-12/. See also Israeli PM, Youtube (Oct. 13, 2023), https://www.youtube.com/watch?v=T4HXaZ20M6Q. 184 Israel Katz, Twitter (Oct. 13, 2023), https://twitter.com/Israel_katz/status/1712876230762967222. 185 See United Nations, Israel must rescind evacuation order for northern Gaza and comply with international law: UN expert, supra note 159 (“‘The humanitarian system in Gaza is already at breaking point. Gaza’s infrastructure has been devastated by indiscriminate bombardments from air, land and sea, and those currently displaced have nowhere to go,’ the expert said. ‘Tripling the displaced population overnight will decimate and permanently alter the civilian population of Gaza,’ she warned.’”); Israel/OPT: Appalling Gaza “evacuation order” must be rescinded by Israel immediately, Amnesty International (Oct. 13, 2023), https://www.amnesty.org/en/latest/news/2023/10/israel

Meanwhile, current and previous Israeli government officials voiced acceptance, if not support, for the suffering it would cause the Palestinian population as a whole. For example, IDF spokesperson Lieutenant Colonel Jonathan Conricus stated, “We will not allow anything into the Gaza strip that supports the fighting ability of Hamas. If it comes to the price of inconvenience for the population, so be it.’”186 The influential former diplomat Danny Ayalon, who served as Israel’s Former Deputy Foreign Minister and former Ambassador of Israel to the United States, said in an interview with Al Jazeera that “there is ‘endless space’ for Gaza’s civilians in Egypt’s Sinai Desert and that they should all be moved there.”187 “The idea is – and this is not the first time it will be done – the idea is for them to leave over to the open areas where we and the international community will prepare the infrastructure . . . tent cities with food and with water.”188 Meanwhile, the Israeli military dropped leaflets all across the northern parts of the Gaza Strip ordering Palestinian civilians to vacate their homes and all public shelters and move to a so-called “Humanitarian Aid Zone” that is close to the Rafah crossing with Egypt.189 The views of Israeli officials that Palestinians are less than human and should be destroyed were promoted by the 95-year old Israeli army reservist Ezra Yachin, who was reportedly called for his reserve duty to “boost morale” ahead of any ground incursions,190 and while dressed in military fatigues declared in a clip widely circulated on social media that has more than 2.2 million views, speaking to other soldiers, in statements aimed at inciting others to act: “Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live. . . . Every Jew with a weapon should go out and kill them. If you have an Arab neighbour, don’t wait, go to his home and shoot him. . . . We want to invade, not like before, we want to enter and destroy what’s in front of us, and destroy houses, then destroy the ones after it. With all of our forces, complete destruction, enter and destroy. As you can see, we will

opt-appalling-gaza-evacuation-order-must-be-rescinded-by-israel-immediately/ (“‘With this order, Israeli forces are setting in motion the mass forced displacement of more than 1.1 million people from Gaza City and the entire northern part of the Gaza Strip. It has sowed panic among the population and left thousands of internally displaced Palestinians now sleeping on the streets, not knowing where to flee to or where they can find safety amid a relentless bombing campaign by Israel and merciless collective punishment measures. This order must be rescinded immediately,’ said Agnès Callamard, Amnesty International’s Secretary General.”). 186 Helen Regan et al., Israel tells 1.1 million Gazans to evacuate south. UN says order is ‘impossible’, CNN (Oct. 13, 2023), https://www.cnn.com/2023/10/13/middleeast/israel-gaza-hamas-war-friday-intlhnk/index.html#:~:text=Israel%20has%20stood%20firm%20in,population%2C%20so%20be%20it.%E2%80%9D. 187 Israeli diplomat: There’s endless space in Egypt’s Sinai Desert for Gaza’s civilians, Middle East Monitor (Oct. 14, 2023), https://www.middleeastmonitor.com/20231014-israeli-diplomat-theres-endless-space-in-egyptssinai-desert-for-gazas-civilians/ (citing Are Israel and Hamas guilty of war crimes?, Al Jazeera (Oct. 13, 2023), at 16:40-17:07, https://www.aljazeera.com/program/upfront/2023/10/13/are-israel-and-hamas-guilty-of-war-crimes). 188 Al Jazeera, supra note 187 at 16:45-17:07. 189 Abeer Salman, Gaza residents say IDF dropped leaflets from planes ordering them to evacuate south, CNN (Oct. 13, 2023), https://www.cnn.com/middleeast/live-news/israel-news-hamas-war-10-1323/h_65692c9ecb7e2e94320df83fdf30cfc7. 190 My Israel, Twitter (Oct. 10, 2023), https://twitter.com/MyIsraelorgil/status/1711732148573499547.

witness things we’ve never dreamed of. Let them drop bombs on them and erase them.”191 (emphases added).

Yachin was a member of the Zionist Lehi unit involved in the above-referenced Deir Yassin massacre.192 The number of Palestinians killed had risen to at least 1,843; at least 7,088 Palestinians had been injured and 423,000 displaced.193 Despite Israel announcing a “safe route” for civilians to evacuate from north Gaza to the south, journalists in Gaza reported that Israeli forces “targeted ambulances, cars, and buses”of people seeking safety.194 Israeli airstrikes bombed three convoys carrying Palestinian evacuees to southern Gaza,” killing 70, the majority of whom were women and children.195 Both the Forensic Architecture investigative unit at Palestinian human rights organization, Al-Haq, and the BBC, used aerial photos and social media posts to geolocate the site of a strike by the Israeli army on a convoy of vehicles carrying civilians fleeing airstrikes in Gaza. Seventy people in the convoy died when the strike while traveling on Salah-al-Din Road, one of the two roads that the Israeli army had previously identified as a “safe route” south.196 Many Palestinians chose not to heed the Israeli evacuation orders, deeming them a “trick,” especially after the designated safe route was bombed.197 Between October 7-13, WHO had documented 37 attacks resulting in the killing of healthcare workers, and damage to 13 healthcare facilities and at least 15 ambulances.198 Such targeted attacks of humanitarian and medical assistance have further restricted life-saving assistance, including to “emergency obstetric and newborn care.”199 As reports of a ground operation circulated, Palestinians in Gaza started circulating statements with their wills, self-written eulogies, and

191 Middle East Eye, “These animals can no longer live,” Twitter (Oct. 13, 2023), at 00:00-00:33, https://twitter.com/MiddleEastEye/status/1712918166437806294. 192 I fought in the Lehi, Israeli Defense Forces (Nov. 29, 2021), https://www.idf.il/en/mini-sites/our-soldiers/ifought-in-the-lehi/; Tzvi Fishman, Lehi Fighter Recalls 1948 Battle At Deir Yassin, Jewish Press (May 21, 2020), https://www.jewishpress.com/indepth/interviews-and-profiles/lehi-fighter-recalls-1948-battle-at-deiryassin/2020/05/21/. 193 United Nations Population Fund, Crisis in Palestine at 1 (Oct. 13, 2023), https://www.unfpa.org/sites/default/files/resource-pdf/UNFPA-Situation-Report_Palestine_13Oct2023.pdf. 194 Mohammed El Kurd, A testimony from a young journalist in Gaza named Bisan, Twitter (Oct. 13, 2023), https://twitter.com/m7mdkurd/status/1712863526665003266. 195 Yasmine Salam, Inside Gaza’s overrun hospitals, scenes of chaos and horror, NBC News (Oct. 13, 2022), https://www.nbcnews.com/news/world/gaza-overrun-hospitals-chaos-rcna120408. 196 Bethan McKernan & Sufian Taha, Gaza civilians afraid to leave home after bombing of ‘safe routes – Analysis of aerial photos and social media posts confirms attack on road identified as safe by Israeli army, The Guardian, (Oct 15, 2023), https://www.theguardian.com/world/2023/oct/14/gaza-civilians-afraid-to-leave-homeafter-bombing-of-safe-routes?CMP=share_btn_tw. 197 Gaza-based journalist @wizard_bisan1 posted videos of the reactions at a Gaza hospital after the bombing: “It was a trick.” wizard_bisan1, Instagram (Oct. 13, 2023), https://www.instagram.com/reel/CyVmYLMMS_/?igshid=NjZiM2M3MzIxNA==. 198 United Nations Population Fund, Crisis in Palestine, supra note 193, at 2. 199 Id.

goodbyes, knowing of their impending death and reflecting the serious mental harm they experienced.200

U.S. Support for Israel’s Campaign

On October 13, U.S. Defense Secretary Austin traveled to Israel to meet with Prime Minister Benjamin Netanyahu, Minister of Defense Yoav Gallant, and the Israeli War Cabinet.201 He proclaimed that the Pentagon was prepared to deploy additional U.S. military aid to Israel, further explaining that “munitions, air defense capabilities and other equipment and resources” were already “rapidly flowing” to Israel.202 Additionally, Secretary Austin and Israeli Defense Minister Yoav Gallant held a joint press conference, in which Israeli Defense Minister Gallant said: I briefed the secretary on strategic developments in our region, and the chief of staff together with the IDF leadership shared our operations. Defense cooperation and U.S. support in the Pentagon, in the White House, in the Congress ensure freedom of operation and enforce our capabilities. In fact, today we will receive the second aircraft carrying essential munition to the IDF. U.S. deployment of assets on land, in air and at sea sends a strong message to both partners and enemies in the region. On behalf of Israel’s defense establishment and on behalf of our citizens, Mr. Secretary, thank you very much.203 Secretary Austin, when “asked about the likelihood of civilian casualties in Gaza as Israeli troops prepare to mount a major ground assault there,” responded that “Israel had the right to defend itself,” and maintained that “[Israeli forces] are professional, they are disciplined and they are focused on the right things.”204

200 Omer Faruk Madanoglu, Gazans begin sharing wills online after reports of land operation by Israel, AA (Oct. 13, 2023), https://www.aa.com.tr/en/middle-east/gazans-begin-sharing-wills-online-after-reports-of-landoperation-by-israel/3019246. 201 U.S. Dep’t of Defense, Readout of Secretary of Defense Lloyd J. Austin III’s Visit to Israel (Oct. 13, 2022), https://www.defense.gov/News/Releases/Release/Article/3557211/readout-of-secretary-of-defense-lloyd-j-austiniiis-visit-to-israel/. 202 U.S. Dep’t of Defense, Secretary of Defense Lloyd J. Austin III Joint Press Conference With Israeli Defense Minister Yoav Gallant in Tel Aviv, Israel (Oct. 13, 2023), https://www.defense.gov/News/Transcripts/Transcript/Article/3556642/secretary-of-defense-lloyd-j-austin-iii-jointpress-conference-with-israeli-def/. 203 Id. See also Oren Liebermann et al., US sending second carrier strike group, fighter jets to region as Israel prepares to expand Gaza operations, CNN (Oct. 15, 2023), https://www.cnn.com/2023/10/14/middleeast/us-aircraftcarrier-eisenhower-israel-gaza-intl-hnk-ml/index.html. 204 Eric Schmitt, U.S. Expanding Military Presence Near Israel, N.Y. Times (Oct. 15, 2023), https://www.nytimes.com/2023/10/15/us/politics/us-military-israel-gaza.html (quoting Joint Press Conference With Israeli Defense Minister, supra note 202).

OCTOBER 14, 2023
Israeli Statements and Conduct Advancing Genocide

On October 14, Israeli Minister Gideon Sa’ar, who is part of the “war cabinet,” stated that the Gaza Strip “must be smaller at the end of the war” and, evincing both intention and no fear in announcing that intention to the international community would cause it to lose support, that “we must make the end of our campaign clear to everyone around us.”205 Tzipi Navon, a close adviser and office manager for Prime Minister Benjamin Netanyahu’s wife, Sara Netanyahu, publicly called on Israel to torture Palestinians in Gaza: “We keep saying to flatten Gaza, flatten Gaza, and I think that’s not enough […] It won’t calm the storm of emotions, it won’t dull the intensity of the rage and pain that can’t find an outlet for them.206 She proposed that “the people of Gaza should be captured and tortured ‘one-by-one’ by pulling out their nails and skinning them alive” and that men’s genitals should be cut off, fried, and fed to the captured.207 Israel commanded the Palestinian Red Crescent Society (“PRCS”) Al Quds Hospital in Gaza City to evacuate, initially setting a first deadline of 6:00 a.m.208 PRCS refused to comply with the order, as it was “offering life-saving services to a large number of Palestinian patients and wounded, including critical cases in the Intensive Care Unit (ICU) and [c]hildren in incubators.”209 The World Health Organization (“WHO”) warned that Israel’s evacuation orders to the 22 hospitals in northern Gaza is a “death sentence” for over 2,000 inpatients, including newborns in incubators, women with pregnancy complications, and other Palestinians in critical conditions requiring intensive care, life support, and hemodialysis.210 In addition to the injured, tens of thousands of

205 Israeli minister says Gaza Strip ‘must be smaller by the end of the war,’ Guardian (Oct. 14, 2023), https://www.theguardian.com/world/2023/oct/15/egypt-moves-troops-to-gaza-border-amid-fears-of-expulsion-ofpalestinians. 206 Israel-Palestine war: Sara Netanyahu’s adviser calls for torture of Gaza residents involved in killing Israelis, Middle East Eye (Oct. 14, 2023), https://www.middleeasteye.net/news/israel-palestine-war-sara-netanyahu-advisortorture-gazans-rant. See also Sara Netanyahu’s advisor spreads poison against leftists: “The traitors continue to incite,” YNet (Oct. 14, 2023), https://www.ynet.co.il/news/article/rjscwxobt. (“There should be an area that is classified as a security zone where whoever enters is intercepted.”) 207 Id. (Navon also added, “Save their tongues for last, so we can enjoy his screams, his ears so he can hear his own screams, and his eyes so he can see us smiling.”). 208 Palestine Red Crescent Society, PRCS Statement on Al Quds Hospital Evacuation Order (Oct. 14, 2023), https://www.palestinercs.org//public/files/image/2023/News/102023/14102023/Al%20Quds%20Hospital%20Evacu ation%20Order.pdf. Mid-day Saturday, Israeli forces revised the deadline to evacuate to 16:00. 209 Id. (PRCS “cannot evacuate the hospital, and by its humanitarian mandate is bound to continue the provision of services to the sick and wounded.”). 210 Evacuation orders by Israel to hopsitals in northern Gaza are a death sentence for the sick and injured, World Health Organization (Oct. 14, 2023), https://www.who.int/news/item/14-10-2023-evacuation-orders-by-israelto-hospitals-in-northern-gaza-are-a-death-sentence-for-the-sick-and-injured. See also, e.g., Gaza: Israel warns AlAwdeh Hospital will be bombed, Middle East Monitor (Oct. 14, 2023), https://www.middleeastmonitor.com/20231014-gaza-israel-warns-al-awdeh-hospital-will-be-bombed/.

displaced Palestinians are sheltering in or around hospitals, “treating them as havens from violence” and “protec[ing] the facilities from potential attacks.211 By October 14, Israel launched over 6,000 bombs over Gaza – the equivalent to a “quarter of a nuclear bomb” – killing at least 2,370 Palestinians including at least 721 children and 390 women.212 Specifically, on what was the eighth day of its military assault in Gaza, Israel, killed “at least 14 Palestinians every hour,”213 and annihilated entire family lines killing “[a]ll the living generations of 45 families, entirely wiping them from the Gaza Civil Registry.214 Israel continued to bomb civilians, injuring 9,250 Palestinians215 and destroying at least 2,650 residential buildings, 71 schools, 145 industrial facilities, 61 media headquarters, 18 mosques, and severely damaging approximately 70,000 residential units and dozens of ancient churches and mosques.216 820,000 Palestinians have been displaced, more than half after Israeli air raids demolished or damaged their homes.217 UNRWA issued a statement urging Israeli officials to protect civilian life: “UNRWA shelters in Gaza and northern Gaza are no longer safe. This is unprecedented.”218

U.S. Support for Israel’s Campaign On October 14, the UNRWA Commissioner-General warned that Palestinians were at risk of dying from severe dehydration due to Israel’s complete siege on Gaza.219 The electricity blackout, which has been sustained since October 11, has strained the water supply, and after Israel threatened to bomb Egypt aid trucks attempting to deliver essential supplies including fuel – which is desperately needed to make water available to the more than 2 million people in Gaza – no

211 Id. 212 Israel Kills 14 Palestinians Every Hour in Its Brutal Attack on Gaza – Israel Dropped Equivalent to a Quarter of a Nuclear Bomb, Euro-Med Human Rights Monitor (Oct. 14, 2023), https://euromedmonitor.org/en/article/5860/Israel-Kills-14-Palestinians-Every-Hour-in-Its-Brutal-Attack-on-Gaza%E2%80%93-Israel-Dropped-Equivalent-to-a-Quarter-of-a-Nuclear-Bomb. 213 Id. 214 Al Jazeera English, Twitter (Oct. 14, 2023), https://twitter.com/AJEnglish/status/1713278768414892508. See also Ruwaida Amer, Even refugee camps aren’t safe from Israeli bombs in Gaza, Al Jazeera (Oct. 17, 2023), https://www.aljazeera.com/news/2023/10/17/even-refugee-camps-arent-safe-from-israeli-bombs-ingaza#:~:text=At%20least%2045%20three%2Dgeneration,the%20rubble%20of%20bombed%20homes. 215 Israel Kills 14 Palestinians Every Hour in Its Brutal Attack on Gaza – Israel Dropped Equivalent to a Quarter of a Nuclear Bomb, supra note 212. See also United Nations, UN expert warns of new instance of mass ethnic cleansing of Palestinians, calls for immediate ceasefire, OHCHR (Oct. 14, 2023), https://www.ohchr.org/en/press-releases/2023/10/un-expert-warns-new-instance-mass-ethnic-cleansing-palestinianscalls. 216 Id. 217 Id. 218 Gaza: Forcing patients to flee hospitals a ‘death sentence’ warns WHO, UNRWA (Oct. 14, 2023), https://news.un.org/en/story/2023/10/1142347. 219 A Matter of Life and Death: Water Runs Out For 2 Million People in Gaza, UNRWA (Oct. 14, 2023), https://www.unrwa.org/newsroom/official-statements/matter-life-and-death-water-runs-out-2-million-people-gaza.

humanitarian aid assistance has been able or permitted to enter.220 Salah-al-Din Road – one of the two roads the Israeli army identified as a safe route to evacuate to southern Gaza – was bombed, killing 70.221 Still, on October 14, President Biden “spoke with Prime Minister Netanyahu to reiterate unwavering U.S. support for Israel.”222 The same day, the Pentagon announced the deployment of a second carrier strike group, the USS Dwight D. Eisenhower Strike Group, which includes a guided-missile cruiser and two guided-missile destroyers,223 and U.S. Air Forces Central announced deploying “fighter jets” and “ground-attack jets” to the region.224

OCTOBER 15, 2023
Israeli Statements and Conduct Advancing Genocide

On October 15, Prime Minister Netanyahu stated that the entire nation is behind Israel’s soldiers, who “understand the scope of the mission” and stand ready “to defeat the bloodthirsty monsters who have risen against [Israel] to destroy us.”225 The Israeli military announced its intention to target Gaza City, the most populous center of Gaza.226 Israeli military hostilities have so far killed over 2,670 Palestinians, including 724 children and more than 47 families “made up of

220 Id.; Israel threatens to bomb Egypt aid trucks heading to Gaza, supra note 144; More aid flights arrive in Egypt’s Sinai, awaiting passage to Gaza, Reuters (Oct. 14, 2023) https://www.reuters.com/world/middle-east/moreaid-flights-arrive-egypts-sinai-awaiting-passage-gaza-2023-10-14. 221 Bethan McKernan & Sufian Taha, Gaza civilians afraid to leave home after bombing of ‘safe routes, The Guardian (Oct. 15, 2023), https://www.theguardian.com/world/2023/oct/14/gaza-civilians-afraid-to-leave-homeafter-bombing-of-safe-routes (The Forensic Architecture investigative unit at the Palestinian human rights organization Al-Haq used aerial photos and social media posts to geolocate the site of the strike, sharing its findings with the Guardian. The BBC’s Verify unit came to the same conclusion.). See also As evacuation orders expire in northern Gaza, MSF calls for protection of civilians, Médecins Sans Frontières, (Oct. 15, 2023), https://www.doctorswithoutborders.org/latest/evacuation-orders-expire-northern-gaza-msf-calls-protection-civilians. 222 The White House, Readout of President Biden’s Call with Prime Minister Netanyahu of Israel (Oct. 14, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/14/readout-of-president-bidens-callwith-prime-minister-netanyahu-of-israel3/#:~:text=President%20Biden%20discussed%20with%20Prime,all%20efforts%20to%20protect%20civilians. 223 U.S. Dep’t of Defense, Statement from Secretary of Defense Lloyd J. Austin III on Deployment of USS Eisenhower Carrier Strike Group to the Eastern Mediterranean (Oct. 14, 2023), https://www.defense.gov/News/Releases/Release/Article/3557560/statement-from-secretary-of-defense-lloyd-jaustin-iii-on-deployment-of-uss-eis/. 224 Oren Liebermann et al., US sending second second carrier strike group, fighter jets to region as Israel prepares to expand Gaza operations, CNN (Oct. 15, 2023), https://www.cnn.com/2023/10/14/middleeast/us-aircraftcarrier-eisenhower-israel-gaza-intl-hnk-ml/index.html. 225 Israel-Hamas war: Biden says Gaza occupation would be ‘big mistake’ – as it happened, The Guardian (Oct. 15, 2023), https://www.theguardian.com/world/live/2023/oct/15/israel-hamas-war-live-us-sends-second-aircraftcarrier-to-deter-hostile-actions-against-israel-ground-assault-on-gazalooms?filterKeyEvents=false&page=with:block-652bd4058f081db0948419d5. 226 Peter Kenyon & Joe Hernandez, Blinken says the crossing to Egypt will open to aid as Israel prepares to strike Gaza, NPR (Oct. 16, 2023), https://www.npr.org/2023/10/15/1206006186/israel-defense-forces-says-its-information-to-strike-gaza-city.

500 Palestinians” who have been entirely wiped off from the Gaza Civil Registry; 9,600 have been injured.227 Nearly 1 million Palestinians have already been displaced.228

U.S. Support for Israel’s Campaign Secretary Blinken announced on October 15 that: “We will stand with [Israel] today, tomorrow, and every day, and we’re doing that in word and also in deed.”229 He added, “we’ve backed that up not only with the words that we’re saying, but with what we’re actually doing, including the deployment of [U.S.] aircraft carrier battle groups.”230

OCTOBER 16, 2023
Israeli Statements and Conduct Advancing Genocide

Israeli Prime Minister Netanyahu, during remarks he made on October 16, stated: “This is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.”231 This assertion was made the day the death count of Palestinian children surpassed 1000.232

227 724 Palestinian children killed in Gaza as Israel targets civilians, DCI-Palestine (Oct. 14, 2023), https://www.dci-palestine.org/724_palestinian_children_killed_in_gaza_as_israel_targets_civilians; Gaza: 2,670 Palestinians killed, since the start of escalation on the morning of 7 October, and 9,600 citizens were injured, Palestinian Ministry of Health (Oct. 15, 2023), https://www.moh.gov.ps/portal/gaza-2670-palestinians-killed-sincethe-start-of-escalation-on-the-morning-of-7-october-and-9600-citizens-were-injured/; Nidal Al-Mughrabi & Emily Rose, Israel vows to demolish Hamas as troops prepare to move on shattered Gaza, Reuters (Oct. 15, 2023), https://www.reuters.com/world/middle-east/gaza-braces-israeli-ground-assault-fears-conflict-spreading-grow-202310-15/; Yakoota Al Ahmad, Over last week, Israel killed 47 families in Gaza made up of 500 Palestinians: News agency, AA (Oct. 15, 2023), https://www.aa.com.tr/en/middle-east/over-last-week-israel-killed-47-families-in-gazamade-up-of-500-palestinians-newsagency/3020636#:~:text=Citing%20reports%20from%20hospitals%20in,out%20from%20the%20civil%20registry. %E2%80%9D. 228 Thousands at risk of dying in Gaza hospitals, cut off by Israel from fuel, water and supplies, PBS (Oct. 15, 2023), https://www.pbs.org/newshour/world/thousands-at-risk-of-dying-in-gaza-hospitals-cut-off-by-israel-fromfuel-water-and-supplies. 229 U.S. Dep’t of State, Secretary Antony J. Blinken Remarks to the Press (Oct. 15, 2023), https://www.state.gov/secretary-antony-j-blinken-remarks-to-the-press-12/. 230 Id. 231 Ministry of Foreign Affairs, Excerpt from PM Netanyahu’s remarks at the opening of the Winter Assembly of the 25th Knesset’s Second Session (Oct. 16, 2023), https://www.gov.il/en/departments/news/excerpt-from-pmnetanyahu-s-remarks-at-the-opening-of-the-knesset-s-winter-assembly-16-oct-2023. 232 One Palestinian child in Gaza killed every 15 minutes by Israeli forces, DCI-Palestine (Oct. 16, 2023), https://www.dcipalestine.org/one_palestinian_child_in_gaza_killed_every_15_minutes_by_israeli_forces#:~:text=Ramallah%2C%2 0October%2016%2C%202023%E2%80%94,bombardment%20and%20unprecedented%20internal%20displacement

On October 16, UNRWA cautioned that “concerns over dehydration and waterborne diseases are high given the collapse of water and sanitation services, including today’s shutdown of Gaza’s last functioning seawater desalination plant.”233 While one line of water had been turned on “for three hours only in the [s]outh of the Gaza Strip,” UNRWA stressed that this development “does not solve the urgent water needs” given that “[o]nly 14 percent of the population in the Strip benefited from this three-hour opening of the water line.”234 First-hand testimony on October 16 from people living in Gaza confirmed the drastically deteriorating situation with access to potable water, food and other supplies.235 By October 16, Israeli hostilities had killed at least 2,670, and injured 9,600.236 1 million Palestinians in Gaza had been displaced,237 and 1,000 were reported to be missing – believed to be buried under rubble.238 Despite Israel’s order for Palestinians in Gaza to evacuate to southern Gaza, Israeli Air Forces continued striking Khan Younis and other southern areas.239 “[O]vernight airstrikes were the heaviest yet, and the bombing carried throughout the day.”240 According to one resident in Khan Younis reported: “We were inside the house when we found bodies scattering, flying in the air – bodies of children who have nothing to do with the war.”241

U.S. Support for Israel’s Campaign

On October 16, it was reported that Secretary Austin has ordered 2,000 U.S. military troops “to prepare to deploy in support of Israel,” an action which has added an additional lawyer of support and backing of Israel.”242 According to Department of Defense Deputy Press Secretary Sabrina Singh: “Since leaving Israel, [Secretary Austin] has held calls with [Minister of Defense] Gallant . . . on a near daily basis and will likely have another call today,” declaring that “[w]e are working to meet Israel’s needs, which include air defense, precision guided munitions,

233 UNRWA Situation Report #7 on the Gaza Strip and the West Bank – 16 October 2023 as of 18:00 (Day 9), UNRWA (Oct. 17, 2023), https://www.unrwa.org/resources/reports/unrwa-situation-report-7-gaza-strip-and-west-bank. 234 Id. 235 Hussein Hammad, Testimonies from Al Mezan staff in Gaza: Hussein, Al Mezan Center for Human Rights, (Oct. 16 2023), https://www.mezan.org/en/post/46292. 236 UNRWA Situation Report #7, supra note 233 (documenting that on average, 267 Palestinians in Gaza have been killed per day or 11 every hour). 237 Id. 238 Nidal Al-Mughrabi, In Gaza, people resort to drinking salty water, garbage piles up, Reuters (Oct. 16, 2023), https://www.reuters.com/world/middle-east/gaza-people-resort-drinking-salty-water-garbage-piles-up-2023-10-16/. 239 UNRWA Situation Report #7, supra note 233. 240 Nidal Al-Mughrabi et. al., Talks fail to let aid reach Gaza; Israel evacuates Lebanon border, Reuters (Oct. 16, 2023), https://www.reuters.com/world/middle-east/gaza-border-crossing-set-reopen-israeli-troops-prepareground-assault-2023-10-15/ (eyewitness account by Abed Rabayaa, “whose neighbour’s house in Khan Younis, the main city in the southern part of the enclave, was hit overnight.”). 241 Id. 242 Ellen Mitchell, Pentagon puts troops on notice to prepare to deploy to support Israel: reports, The Hill (Oct. 16, 2023), https://thehill.com/policy/defense/4259025-pentagon-puts-troops-on-notice-to-prepare-to-deploy-tosupport-israel-reports/.

artillery and medical supplies.”243 The same day, Secretary Blinken held a seven hour meeting with the Israeli war cabinet. The White House announced that President Biden will make an extraordinary wartime trip to Israel to reassert Israel’s “right and duty to defend itself”244 and “demonstrate his steadfast support” for the country.245

IV. FINDINGS

Applying the facts as set out in Section III, to the law, as explained in Section II, we make the following findings.

A. Israel’s Responsibility for Genocide

Based on the foregoing statements and actions undertaken by current and former Israeli officials, and the deadly impact, serious physical and mental harm, and intention and increasing effect of conditions imposed calculated to bring about the physical destruction of the Palestinian population under siege in Gaza, there is a plausible and credible case that Israel is committing genocide against the Palestinian population in Gaza, as a significant part of the overall Palestinian population, as a protected group. The statements by Israeli officials, former officials, and Israeli citizens whose remarks have received wide attention because of their prominence have repeatedly and consistently dehumanized the Palestinian population in Gaza, labeling the entire population as “enemy,” “terrorists, or “human animals,” and called for it to be punished, attacked without any limitations or distinctions on the targets, and “cleared.”246 Indeed, certain statements made clear that the goal was “destruction,” whether by an unprecedented bombing campaign or a humanitarian crisis.

243 U.S. Dep’t of Defense, DOD Remains Resolute in Support of Israel (Oct. 16, 2023), https://www.defense.gov/News/News-Stories/Article/Article/3558715/dod-remains-resolute-in-support-of-israel/. 244 President Joe Biden will visit Israel in high-stakes trip, CNN (Oct. 16, 2023), https://edition.cnn.com/2023/10/16/politics/joe-biden-israel-visit/index.html. 245 The White House. “Statement from Press Secretary Karine Jean-Pierre on President Biden’s Travel to Israel and Jordan.” (Oct. 16, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/16/statementfrom-press-secretary-karine-jean-pierre-on-president-bidens-travel-to-israel-and-jordan/. 246 This campaign is not the first time that such language has been used against the Palestinian population, and indeed, since the closure was declared in 2007, Israel has referred to Gaza as a hostile entity and its population as the enemy. See, e.g., PCHR, Al Mezan & Al Haq submission to ICC on Closure of Gaza as a CAH: Persecution, supra note 73.

Clear inference of genocide can be drawn not only from the words used, but also by the fact that they have been followed up with actions aimed at achieving the goal, such as: a siege and closure that is creating the conditions of life to bring about the destruction of the group, in whole or in part by cutting off food, water, electricity and fuel for the entire Palestinian population in Gaza; the resulting denial of access to healthcare due to lack of fuel and electricity as well as the bombing of medical staff, ambulances, multiple medical facilities and hospitals; the denial of safety by bombing civilians and civilian infrastructure, including apartment buildings resulting in the killing of entire families and at least 3,000 Palestinians, including at least 1,030 children; the bombing of schools, religious sites and critical infrastructure; and giving orders for mass evacuations in short periods of time in a closed area under bombardment, causing terror across the population and in a context where such displacement is understood as intended to be permanent. Terror or serious mental harm is also caused by bombing places after declaring them safe – such as the safe route that the Israeli army designated when instructing people to flee – or places that are expected to be safe and where civilians take refuge, like schools and hospitals. Many Israeli officials make clear that the entire population of Gaza is the object of the attack, and although some Israeli officials invoke “Hamas”247 as the purported object, the collective nature of the attack against the entire territory of Gaza with its population of more than 2,200,000 people, necessarily implicates the entire Palestinian population as the target. That nearly half of the people killed to date are children, and where half of the total population currently being subjected to “no electricity, no food, no fuel” in the context of a mass bombardment is under 18, is a clear indicator that the object of Israel’s campaign of destruction is not limited, but is rather the population as a whole. In this sense, the civilian population of Gaza is being singled out for attack under the current military bombardment and siege, with the only purported justification by some for this attack being that they share the same territorial space or political sympathy with Hamas, and have the goal of ending the siege and occupation. Accordingly, Israel has met the elements of the crime of, at minimum, attempt to commit genocide, and there is a plausible and credible case that the elements are met for genocide. Through the statements and actions of the Israeli government it has made clear that the Palestinian civilian

247 Israel and often members of the international community use the term “Hamas” without explanation or apparent limitations. Hamas (an acronym for “Islamic Resistance Movement”) is a political party, serving as de facto governing authority in the Gaza Strip, where it fulfills administrative governmental functions, such as running schools, health sector, social affairs, policing, and security. The civil servants who carry out such administrative functions are civilians. Armed resistance groups exist, and operate within the Gaza Strip, which remains under prolonged belligerent occupation, an international armed conflict under international humanitarian law (IHL). Some of these – such as al Qassam Brigade – are associated with Hamas, and form part of its military wing. However, as recognized under IHL, a clear distinction must be drawn between the political wings and the military wings of all organizations/groups. As such, a clear distinction must be drawn between those members of Hamas who are carrying out solely civilian functions, who must never be targeted, and those members who participate in armed resistance or directly participate in hostilities, who can be directly targeted under and in accordance with IHL. Moreover, and critically, civilians in Gaza must be granted the full protections of international humanitarian law, irrespective of political affiliation.

population of the Gaza Strip (the group) is the intended target of Israel’s siege and bombardment campaign. Israel and its officials demonstrate the intention to destroy the Palestinian population in Gaza through the following actions: (1) a siege and closure that is creating the conditions of life to bring about the destruction of the group, in whole or in part by systematically expelling members of the group from their homes, and creating circumstances that would “lead to a slow death,” such as the lack of proper housing, water, shelter, clothing, hygiene, sanitation, or proper food while attacking or denying medical care; (2) a bombing campaign of civilians and civilian infrastructure causing the death of thousands Palestinians, nearly half of whom are children; and (3) by causing serious bodily or mental harm to Palestinians in Gaza, including through the trauma and injuries caused by a continual bombing campaign across the Gaza Strip and the orders to “evacuate,” which are not only impossible to comply with in the time and space, but also in a context where such displacement is understood as intended to be permanent.

B. The United States Failure in its Duty to Prevent Genocide

Since October 7, 2023, the United States and its senior officials, up to and including President Biden, have made no statements calling on Israel to cease its attack on the Palestinian population in Gaza, and through their actions, have demonstrated no effort to use its considerable – and incomparable – influence to deter acts that underlie genocide. On the contrary, U.S. officials have offered encouragement, support and affirmation of the campaign that Israel has undertaken, while reportedly preventing their diplomats from speaking of a ceasefire. As Secretary Blinken reiterated in his address to Netanyahu during in his trip to the Middle East on October 12 – even after five days of siege and unrelenting bombing on Gaza, including the use of white phosphorus bombs that apparently had been provided by the United States, with the U.N. warning, among others, of additional mass casualties due to the cut off of basic necessities like food, water, fuel and electricity – “[w]e will always be there by your side.” The United States bears responsibility for failing to comply with its obligations to prevent genocide against the Palestinian population in occupied Gaza: it failed to take any measures to deter Israel’s actions since first learning of the serious risk of genocide, including by Israeli Defense Minister’s dehumanizing statement of a total siege – “no electricity, no food, no fuel, everything is closed” – on the Palestinian population of Gaza on October 9, 2023.248 The United States and Israel have

248 In addition to the detailed account below, see Al-Haq, Al Mezan Center for Human Rights & Palestinian Centre for Human Rights (PCHR), Joint Urgent Appeal to UN Special Procedures on Israel’s Total Warfare on Gaza’s Civilian Population (Oct. 11, 2023), https://www.alhaq.org/cached_uploads/download/2023/10/12/finalurgent-appeal-to-special-procedures-on-gaza-11-oct-1697135190.pdf. According to the Joint Appeal: Since 7 October, Israel’s attacks have targeted and destroyed residential homes and buildings, killing civilians and wiping out entire Palestinian families often without issuing precautionary warnings, in addition to the targeting of mosques, medical facilities and ambulances, water, electricity and sewage infrastructure, high-rise buildings, commercial areas and buildings, public institutions, schools and universities. . . .

strong political links, as both parties have consistently asserted, across multiple administrations and governments, and reaffirmed without qualification since October 7, 2023. The United States has the ability to exercise influence on the state of Israel, as evidenced by the long-term and “unbreakable” political, economic, diplomatic and military links, and the significant amount of military assistance it provides – the largest to any country in the world, which it chooses to not condition.249 An example of the United States’ clear ability to influence Israel’s actions in the current war was when, after nearly a week of cutting off basic necessities to life to the 2.2 million people in Gaza, Israeli Minister of Energy Israel Katz told reporters that the decision to resume water supply to southern Gaza was made during the call between Netanyahu and Biden.250 It is also evidenced by the near daily communications between Israeli and U.S. officials, in which the United States offers continued support – not calls to change course. Instead of using its influence to call on Israel to end the siege on, and bombing of, the Palestinian population in Gaza, particularly after statements by Israeli officials made their intent to try to destroy, if not achieve the destruction of, the Palestinian population in Gaza evident, the United States continued to offer Israel unconditional support. All States should take notice of their duty to prevent genocide and take all measures to forestall the commission of genocide; that the duty to prevent incurs State responsibility; and that a claim can be brought before the International Court of Justice for breaching the obligation to prevent genocide.251 Because of the affirmative steps the United States has taken to aid or assist Israel, its breaches of international law must also be assessed as complicity in genocide.252

C. U.S. Complicity in Genocide

Since October 7, 2023, the United States, and its senior officials up to and including President Biden, offered to supply “all appropriate means of support” and did, in fact, supply material aid and assistance to Israel to further its military campaign in and siege of Gaza. The United States provided munitions, military equipment, fighter jets and other material assistance, while also moving two aircraft carriers with heavily armed strike groups into the area, with the pledge to

[S]ince the aggression, Israel closed the Erez and Kerem Shalom crossings, denying the entry of humanitarian supplies, including medical supplies or the exit of Palestinians from Gaza for treatment. This is in addition to cutting off water and electricity off the two million population in Gaza. 249 250 251 252 U.S. Foreign Aid to Israel, supra note 96. Barak Ravid, Twitter (Oct. 15, 2023), https://twitter.com/barakravid/status/1713560293106708636?s=21. See, e.g., The Gambia Order (regarding the genocide against the Rohingya). ICJ Bosnia and Herzegovina Judgment, para. 432 (distinguishing between the obligation to prevent and

urgently “get Israel what it needs” in support of its campaign against Gaza. This aid, and the daily pledges of unqualified and unconditioned support, have been made with full knowledge of Israeli statements and Israel’s action from which genocidal intent against the Palestinian civil population can be inferred as set out in Findings, Section A. Senior U.S. officials have made trips to Israel to discuss the forms of support Israel needs, including military and diplomatic. They have been in continual contact with senior Israeli officials, with discussions happening regularly at the level of President Biden and Prime Minister Netanyahu, with the visit planned between the two for October 18. At no point has the United States called on Israel to cease its siege and bombardment campaign against the Palestinian population in Gaza. Furthermore and critically, the material assistance and pledges of assistance and encouragement have never diminished, and in fact, continued, after Israeli officials clearly stated the goal of subjecting the entire civilian population of Palestine to conditions of life intended to destroy the group in whole or in part, through the killing of Palestinians by indiscriminate bombardment, including after the death toll of children surpassed 1,000. It continued after the deprivation of the most essential necessities to sustain human life reached a point where the Palestinian population was largely without food, water, electricity, and fuel, with the attendant devastating impacts on their access to medical assistance and health.

Two critical junctures serve to demonstrate how during each moment of escalation carried out by Israeli occupying forces, the United States remained resolute in its diplomatic, political, and military aid, assistance and support of Israel. On October 9th, Israeli Minister of Defense Gallant ordered a complete siege on the Gaza Strip, using dehumanizing language to describe the Palestinian population, by announcing, “[t]here will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we act accordingly.” President Biden’s reaction was a pledge to provide Israel “what it needs” and repeating disinformation and propaganda, while remaining silent about Israel’s killing of over 900 Palestinians, including at least 260 children, as well as health care workers and journalists, its injuring of more than 4,600 Palestinians, and the warning by the United Nations that 400,000 Palestinians in Gaza did not have running water due to the damage sustained by Israeli airstrikes and actions. Then, as Israel issued its “evacuation” order to 1.1 million Palestinians under bombardment and under a full closure order and siege on October 12th, Secretary Blinken publicly said that the United States “will always be there, by your side” during a press conference in Israel, and declared that the United States would continue to provide material support to Israel, including ammunition. Secretary of Defense Austin also confirmed that the U.S. was “working urgently to get Israel what it needs including munitions.” Neither U.S. official offered any rebuke to the “evacuation” order or concern for the deaths, serious physical or mental harm, or conditions of life it would impose on the Palestinian population. Instead, with knowledge of Israel’s action, the United States pledged to increase ammunition and other military support, affirmed again on October 13, 2023 when Secretary of Defense Austin was in Israel. Indeed, Secretary of State Blinken made clear that these were not simply empty pledges:

“we’ve backed that up not only with the words that we’re saying, but with what we’re actually doing, including the deployment of [U.S.] aircraft carrier battle groups.” Accordingly, there is a plausible and credible case to be made that the United States’ actions to further the Israeli military operation, closure, and campaign against the Palestinian population in Gaza, with the knowledge of Israel’s intention to destroy the Palestinian population in Gaza through killings, causing serious mental and physical harm, and creating conditions of life calculated to bring about its physical destruction in whole or in part, rise to the level of complicity in genocide.

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