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to the subject-matter of the Genocide Convention. Furthermore, the Court is unaware of the underlying information or methodology used by the individuals who made these statements. This is in stark contrast to the evidence available to the Court in the Gambia case.
The declarations made by the President of Israel and the Minister of Defence of Israel are not a sufficient factual basis for inferring a plausible intent of genocide. Both authorities have issued several statements clarifying that Israel’s intent is the destruction of Hamas, not the Palestinians in Gaza. For example, on 29 October 2023, Israel’s Minister of Defence, stated that “we are not fighting the Palestinian multitude and the Palestinian people in Gaza”. On 29 November 2023, the President of Israel said that “Israel is doing all it can, in cooperation with various partners, to increase the flow of humanitarian aid to the citizens of Gaza”. Regretfully, the Court did not take note of these statements. Finally, regarding the statements made by the Minister of Energy and Infrastructure, the latter is not an official with authority over the military. The relevant factual basis allowing for an inference of intent to commit genocide must stem from the organs which are capable of having an effect on the military operations. These organs have repeatedly explained that the purpose of the military operation is to target Hamas, not the Palestinians in Gaza.
37. It is concerning that certain Israeli officials have used inappropriate and degrading language, as noted by the group of Special Rapporteurs and the CERD Committee. Indeed, it is an issue that will have to be investigated by the competent Israeli authorities. However, to infer an intent to commit genocide from these statements, which were made in the wake of horrific attacks against the Israeli population, is plainly implausible.
38. The evidence presented by Israel shows that it is the opposite intent that is plausible and guides the military operation in Gaza. Israel pointed out that it has adopted several measures to minimize the impact of hostilities on civilians. For example, Israel continues to supply its own water to Gaza by two pipelines; it has increased access to medical supplies, facilitated the establishment of field hospitals and distributed fuel and winter equipment (see Order, para. 64, referring to CR 2024/2, pp. 50-52). Furthermore, the Prime Minister of Israel stated on 17 October 2023 “[a]ny civilian death is a tragedy … we’re doing everything we can to get the civilians out of harm’s way,” and on 28 October 2023 that “the IDF is doing everything possible to avoid harming those not involved”.
39. It is surprising that the Court took note of Israel’s statements explaining the steps it has taken to alleviate the conditions faced by the population in Gaza, together with the Attorney General’s statement announcing the investigation of any calls for the intentional harm to civilians (see Order, para. 73), but then it completely failed to draw conclusions from these statements when examining the existence of intent. It is even more surprising that the Court did not view any of these measures and statements as sufficient to rule out the existence of a plausible intent to commit genocide.
40. The Court’s approach to plausibility in the present case is not akin to the one it took in the Gambia case, where the Court had compelling evidence of “clearance operations” committed against the Rohingya. These “clearance operations” included sexual violence, torture, the methodical planning of mass killing, denial of legal status, and instigation of hatred based on ethnic, racial, or religious grounds[1].
- ↑ See United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12 September 2018, paras. 27, 52; United Nations, Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/CRP.2, 17 September 2018, paras. 458-748, 1140.
