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ANWAR ALBERTUS SC
I have read Mark Oppenheimer’s article Why Israel’s War in Gaza did not meet the legal definition of genocide, the response thereto by Hassen Lorgat and Oppenheimer’s rejoinder thereto.
Despite acknowledging that entire neighbourhoods were destroyed, families wiped out, civilian deaths being extensive and basic infrastructure collapsed, within the Gaza Strip, all at the hands of the Israeli Defence Force (the IDF), Oppenheimer argues that the requisite intent (dolus specialis) for the crime of genocide, has not been met. He frames the violence and carnage inflicted by the IDF upon the Palestinian civilian population, as a counter-insurgency measure by Israel, with its primary goal being to defeat Hamas, recover hostages taken by them during their incursion into Israel on October 7, 2023, and not, in any way, to destroy Palestinians, in whole or in part.
Before unpacking Oppenheimer’s argument, it should be observed upfront that his denial of a genocide by Israel in Gaza, comes at a time when the overwhelming majority of international human rights scholars, including Francesca Albanese, the UN Special Rapporteur, are of the considered view that Israel has committed genocide in Gaza. In fact, the discourse has for some time now passed the tipping point in the genocide debate, with the central question now being whether a collective crime has been and is still being committed by the complicity of influential third party states, by their enabling the systematic destruction of the Palestinian people.
In this debate, Mike Huckabee, the US Ambassador to Israel, has even suggested that Israel would be justified in taking over a vast stretch of the Middle East on Biblical grounds. The reference to Biblical grounds, should not be dismissed as empty rhetoric. It finds resonance with the exhortation by the Prime Minister of Israel to the IDF soldiers at the beginning of the conflict about Amalek, which is dealt with later herein.
Thus, for those around the globe following the Gaza conflict, it should be asserted that scholars are past the debate of whether there is a genocide being committed against the Palestinians. However, any commitment to free speech requires a reassertion of the argument that genocide has been and is still being committed by Israel against the Palestinians. This is what I propose to do in what follows.
In support of his thesis that special intent on the part of Israel is absent, Oppenheimer argues that Hamas deliberately operated from within civilian areas, built extensive tunnel networks beneath homes and public buildings, stored weapons in civilian structures, and integrated its command operations into densely populated zones. This strategy, so Oppenheimer argues, made civilian harm inevitable. In this regard, he downplays the fact that Israel, as the International Court of Justice recently found, is an unlawful occupier of the Occupied Palestinian Territory (OPT), which consists of the Gaza Strip, the West Bank and East Jerusalem and that the Palestinian people, are entitled in law to oppose Israel’s unlawful occupation and to use all measures, including armed resistance, to challenge such occupation.
Intent is a subjective state of mind on the part of a wrongdoer, and is seldomly demonstrated by overt admission, but more often than not, inferred from his actus reus (the unlawful conduct). In the case of genocide, the special intent is inferred from a pattern of conduct. Whilst the International Court of Justice (the ICJ) has applied the only reasonable inference test, when intent is inferred circumstantially, it is also importantly accepted in international law, that genocidal intent need not be the sole intent. It may co-exist with military objectives.
In his eagerness to find justification for Israel’s carnage in the Gaza Strip, Oppenheimer uses the straw argument of Israel’s overwhelming and awesome military power relative to Gaza and contends that if it had been Israel’s intent to commit genocide, the scale and pace of killing would have been reflected in that objective. The fact that this might well be so, does not answer the question of genocidal intent, when one looks at the staggering evidence of the Gaza Strip, having been reduced to a wasteland by the IDF.
Oppenheimer, in furthering his argument on the absence of special intent, dismisses the statements made by high-ranking political officials in the Israeli cabinet, including Netanyahu, which were pregnant with genocidal intent, simply as statements made in moments of justified rage and/or inflammatory rhetoric. However, history will mark these statements of intent as being beyond mere rhetoric, since they square with the subsequent complete destruction of the Gaza Strip, by the IDF. In fact, the total destruction of Gaza stands as mute testimony to the giving effect by the IDF to those utterances.
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The systematic, sustained and extreme violence unleashed on the Palestinian civilian population, is very much consistent with the Prime Minister of Israel, Benjamin Netanyahu’s reminding the IDF soldiers at the beginning of the conflict about Amalek, a group of people referred in the Hebrew Bible, who were allegedly cursed by God and targeted for total annihilation. This reminder and similar statements by a number of members of the Israeli cabinet, is certainly not consistent with an aim to root out and destroy Hamas, but on the contrary, demonstrable of an intention to deracinate the Palestinian population from the OPT.
Without any credible evidence, Oppenheimer states that the death of 1200 Israelis on October 7 were all at the hands of Hamas and thus, ignores credible evidence from international bodies that many Israelis, if not most, were killed by the IDF employing Hannibal-style tactics against Hamas insurgents. He also readily accepts that sexual violence was committed by Hamas during their incursion into Israel, despite significant evidence to the contrary, by accredited international entities. He blandly claims that Hamas leaders openly stated that such attacks would be repeated, without saying who these so-called leaders were and whether or not, they spoke on behalf of Hamas.
In pursuit of his thesis, Oppenheimer studiously avoids questioning, given the IDF’s highly sophisticated weaponry, which allowed them to kill with pinpoint accuracy leaders of Hamas and Hezbollah in Iran and Lebanon, why was it necessary for them – if their primary aim was to eliminate Hamas – to destroy whole neighbourhoods, including mosques, churches, hospitals, educational facilities, ambulances, wantonly bulldozing roads, destroying water sources and the sustained denial of electrification, food and medicine to the Palestinian people and their deliberate starving by refusing humanitarian aid into the Gaza Strip.
The long and the short of it is, that the Gaza Strip has been reduced to a veritable graveyard and as such, rendered uninhabitable by the IDF’s unyielding bombing of the area and chasing the civilian population from one place to another and then attacking them wherever they sought refuge. This unrelenting and extreme violence by the IDF on Palestinian civilians and destruction of their civilian infrastructure, constitutes a strong body of evidence from which to draw the inference of special intent to destroy the Palestinians, either in whole or in part.
The ICJ held in Bosnia v Serbia and Croatia v Serbia that genocidal intent may be inferred where conduct involving violence and destruction are directed at the group as such and cannot reasonably be explained solely by lawful military necessity, where the scale and systematic nature of violence is extreme.
It is also important to note that in September 2025, the UN Independent International Commission of Inquiry found that:
• four of the five genocidal acts under Article II had been committed;
• those acts were carried out to destroy Palestinians in Gaza, in whole or in part;
• intent was inferred from explicit statements by officials and a consistent pattern of conduct.
The Commission expressly found that the requirement of special intent was met on the strength of its factual and legal evaluation.
Whilst such findings admittedly do not constitute binding judicial precedent, they are highly persuasive in international law, particularly, when they are pronounced upon by entities enjoined to apply international legal standards.
Even assuming purely for the sake of argument, that the violence and destruction unleashed upon the Gaza Strip and its civilian population, were committed with the object of driving out and/or eliminating Hamas, the existence of this military objective does not necessarily negate genocidal intent, more particularly, where acts of violence and destruction systematically target civilian life and continues, notwithstanding foreseeability of group destruction.
In the Gaza context, the ICJ found – at the provisional measures stage – that there is a plausible risk of genocide and that the Palestinians in Gaza have a plausible right to protection under the Genocide Convention.
Whilst provisional measures admittedly are not final findings of genocide, the court accepted that the evidence presented could support the inference of genocidal acts, triggering binding preventive obligations.
In conclusion, the inference is ineluctable, that genocidal intent has been clearly established.
MA Albertus SC is a practising member of the Cape Bar, former Chairperson of the Cape Bar, and former Visiting Professor in Comparative Law at the Levine College of Law, University of Florida.
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