Off the Mark, Mr Oppenheimer: Why Gaza meets the definition of genocide

HASSEN LORGAT presents a detailed response to claims by Johannesburg advocate, Mark Oppenheimer, denying genocide in Gaza, analysing occupation law, political intent and early warnings from genocide scholars.

Mark Oppenheimer, in his article ‘Why Israel’s war in Gaza did not meet the legal definition of genocide’, is wrong in his analysis. He uses vocabulary that frames the situation following October 7 simply as a ‘war’ and reverts to justifying Israel’s actions through legal conjuring and counter-insurgency measures.

Oppenheimer’s key objective is to refute accusations that Israel committed genocide, arguing that genocide is ‘a specific crime in international law, defined narrowly and applied cautiously’. He concludes that ‘Israel’s conduct, however destructive and often tragic, did not meet the legal threshold for genocide’. His justification revolves around the claim that there was no intent to destroy a protected group, that Israel was targeting Hamas, and that casualties are an unfortunate reality of war.

However, by basing his argument solely on this narrow legal framing, Oppenheimer ignores other legal facts — in particular, the foundational fact that Israel is an occupying power with specific obligations under international law towards those under its control. This context is critical.

The legal reality of occupation

In its momentous 2024 ruling, the International Court of Justice (ICJ) found Israel’s 56-year occupation of Palestinian territories illegal, mandating that it must end ‘as rapidly as possible’. The court ruled that Israel’s expansion of settlements is illegal and that Israel has moved beyond temporary military rule to effectively annex large parts of the West Bank and East Jerusalem.

The court cited the permanent nature of Israeli rule and settlement infrastructure as a primary reason for the violation of international legal standards. For some reason, Oppenheimer does not factor this ruling into his arguments. The occupation is no longer considered a temporary military necessity but an unlawful annexation that must be dismantled.

Rhetoric and intent

Oppenheimer mentions, but severely understates, the historic human and systemic destruction of Palestinian society, its history, and its cultures. He says that accountability for this had to be sought elsewhere, but Israel has had to confront it publicly. Contrary to Oppenheimer’s view, there is a clear argument, supported by words and strategy, that an incremental genocide is unfolding. These are not isolated statements, and the ICJ is currently examining evidence of genocidal intent.

Oppenheimer acknowledges some ‘inflammatory’ rhetoric by Israeli politicians during the war. They were ‘reckless, dehumanising, and morally indefensible’, but did not constitute an act of genocide, he wrote. This dismissal is inadequate. Subsequent to October 7, Israeli leaders conflated Hamas with all Palestinians, using rhetoric such as referring to people as ‘not innocent’, ‘our enemy’, ‘Nazis’, and ‘human animals’.

Their war plan spells it out:

October 9, 2023: Defence Minister Yoav Gallant announced a ‘complete siege’ on Gaza, stating, ‘No electricity, no food, no water, no gas – it’s all closed’, adding that Israel was fighting ‘human animals’.

Minister Israel Katz: Confirmed, ‘No electrical switch will be turned on’, and that no essential resources would enter until hostages were returned.

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This intensified the existing blockade, directly impacting hospitals and desalination plants.

The Lemkin Institute: Four facts against denial

The Lemkin Institute for Genocide Prevention, in their ‘Four Facts About Israel’s Genocide’, spoke directly to genocide deniers like Oppenheimer. They expressed concern about the ‘eleventh-hour awakening’ by some groups, criticising the ‘epistemological and imperial Western arrogance and gatekeeping that abound in law and the social sciences, including human rights’.

The Institute accuses elite Western institutions of ignoring warnings from threatened Palestinian communities to maintain their own professional standing, and of cowardice in not naming the crime early enough to prevent its worst outcomes:

‘Correctly identifying genocide is essential for lasting peace, but using the term only after the damage is done serves the institutions more than the victims.’

The Institute further counters false impressions with facts that directly address Oppenheimer’s errors:

Genocide is a process, not a single event: It is a progressive process that starts small and escalates, encompassing acts like starvation, displacement, and humiliation outlined in the Genocide Convention. Waiting for ‘irrefutable evidence’ of mass extermination means waiting until it is too late to save lives. The Lemkin Institute warned of the incremental violations of Palestinian rights well before October 2023. As early as May 8, 2021, they warned that ‘Israel appears to be implementing an eliminationist ideology … that has marred the nation since its founding in 1948’.

A quest for ‘Greater Israel’: Israel’s genocide is happening across all Palestinian territories. Israel has been slowly eliminating Palestinians from historic Palestine using tactics ranging from forced displacement to famine. Focusing only on Gaza obscures this broader, intentional process of ethnic cleansing.

The failure of Western institutions: Western scholars, governments, and NGOs, influenced by pro-Israel stances or a sense of superiority, have gatekept the term ‘genocide’ and marginalised victims. Focusing only on starvation hides other genocidal acts: displacement, humiliation, sexual violence, and property destruction.

The power of global solidarity: Global public solidarity, led by the Global South and Western youth, has been the true force for prevention while professionals pontificated. This has resulted in a powerful de facto alliance between the Global South and the youth in Western Europe and North America.

Conclusion: A call for courage

The failure to act on ‘red flags’ allowed this genocide to escalate. It is not too late to recognise that the impacts continue; since the ceasefire reportedly signed on October 10, 2025, over 509 Palestinians have been killed by Israeli forces. So, the genocide continues, as no real or just peace has been in place.

The Lemkin Institute was among the first to warn of the incremental genocide in Palestine. It demands new, independent genocide prevention mechanisms empowered with the political will, resources, and courage to name the process early — not out of convenience, but out of necessity.

Hassen Lorgat is a social justice and media activist.