A Threshold Crossed: On Genocidal Intent and the Duty to Prevent Genocide in Palestine

This article is divided into two parts. The first part describes an increasing legal consensus, manifested in a convergence of the interpretations of Israel’s intent and pattern of conduct in Gaza as genocide. It argues, however, that the focus of this emerging consensus should not be limited to Israel’s weaponization of starvation. Instead, the “military” logic – and Israel’s concomitant deployment of highly permissive interpretations of International Humanitarian Law (IHL) to frame its actions – should be critically examined. This framing conceals genocidal acts and intentions and ignores the context of occupation and apartheid in which Israel’s conduct unfolds. There is ample evidence and compelling legal arguments to establish genocidal intent, despite the presumably high threshold required. Indeed, following the demand by six western states in the Myanmar case to lower the threshold required to determine intent, consistency requires the application of a similar threshold to determine the existence of genocide in Gaza. Additionally, Judge ad hoc Aharon Barak’s separate opinions, which insisted on an exclusive IHL perspective, further show the weakness of the military rhetoric to frame Israel’s actions. This rhetoric falsely presents the occupier who imposes an apartheid system as acting in “self-defence” in response to an “existential” threat. Following this emphasis on “genocide” as opposed to “war,” the article’s second part focuses on paragraph 44 of the ICJ’s March 2024 order to criticize the ICJ’s reluctance to explicitly order Israel to suspend its military operations as well as its refusal to elucidate third party obligations to prevent genocide beyond the parties before the Court. Consequently, the Court failed to adequately reinforce and elucidate the obligation to prevent genocide.