By: Elliot M. Malin†
Over the last two years, we have seen the severe weaponization and degradation of international law aimed at causing substantial diplomatic harm against the State of Israel.[1] These attempts have distorted legal standards and caused real harm to real people around the world who were blamed for the alleged actions of the Israeli government. All of this done while excusing the other belligerent party, Hamas, from having agency for its own actions that harmed Palestinian civilians in Gaza.
The question that must be asked to the legal community is simple: Where do we go from here?
These laws were written with the intent to create protections for both civilians and combatants alike.[2] With the employment of lawfare against Israel it causes real harm to those the law is meant to protect.[3]
Early on in the war accusations of genocide were being levied against Israel for its conduct in the war in Gaza,[4] often citing Netanyahu’s “Amalek” statement,[5] Gallant’s “human animals” statement,[6] and Herzog’s “entire nation is responsible statement,”[7] for example. To an untrained eye these statements taken together may appear genocidal as they have been presented.[8] However, when the jurisprudence required to analyze the accusation is applied, each accusation falls apart and cannot be found to be genocidal in the slightest.[9] Under the only reasonable inference test and analyzing the four-part test from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), we find that each of these statements when placed into the entirety of the context of what was said when they were made, fail to be genocidal.
The International Court of Justice (“ICJ”) stated in Bosnia v. Serbia: “The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be that it could only point (emphasis added) to the existence of such intent.”[10]
The four-part test from ICTY permits the inference for intent through analyzing: (1) the general context of the statements given indicating genocidal intent; (2) the scale of atrocities committed; (3) the systemic targeting of the protected group(s); and (4) evidence that the commission of the genocidal actus reus was consciously planned.[11]
For example, for Netanyahu, his “Amalek” remarks mirror the words on the Holocaust memorial in The Hague.[12] For Gallant it was clear from what he said in referencing Hamas that he was directly referring to Hamas as a belligerent party.[13] And for Herzog he clearly stated that Palestinian civilians must be protected from harm.[14] Another major issue for Herzog being referenced as evidence of genocidal intent is that he is not in the chain of command to give such an order or participate in such conduct. Thus, causing the first “prong” of ICTY to fail.
Often people discuss the war in Gaza as having been so massive that it is “unheard of.” While the destruction is immense and the raw death count is large, is the scale so large to constitute the destruction of a protected people, in part? As of the writing of this piece, the death toll is 67,869 total reported deaths in Gaza.[15] This will undoubtedly increase.[16] It also must be said that every innocent life lost is like losing a universe and is a tragedy. However, it is unlikely to increase to a statistically significant percent. Pre-war the total population of Gaza was estimated at 2,230,000.[17] The simple math of this brings total death, including combatants, to about 3% of the pre-war population.[18] In Srebrenica, it is estimated that about 20-30% of the enclave’s Bosnian Muslim population was murdered in July 1995.[19] And in Rwanda, it is estimated that up to 80% of the Tutsi population was murdered in 100 days.[20] While the raw death is significant, it does not appear to be so significant to constitute such a massive scale of atrocity, especially with the understanding of systemic weaponization of Gaza’s civilian and humanitarian infrastructure. Thus, causing the second “prong” from ICTY to fail.
Throughout the war Israel’s stated goal was to target Hamas and other combatant groups.[21] This was done with Israel providing numerous warnings to civilians to evacuate certain areas,[22] but also with the knowledge that Hamas was weaponizing and fighting from humanitarian and civilian areas.[23] There is zero evidence to suggest that Israel was systematically targeting Palestinians, as such, especially in light of total death as reported. This defeats the third “prong” from ICTY.
Finally, there exists zero evidence that there was any conscious planning of an alleged genocidal actus reus. Thus, the fourth prong from ICTY is defeated.
This demonstrates that the accusations are defeated when the tests required are applied. An accuser must place the statements into context and because it creates another reasonable inference of intent – the return of the hostages and the dismantling of Hamas.
Further, each accusation has refused to assess the conduct of Hamas as a combatant party and how they choose to fight informs Israeli conduct on the converse side. This is a critical misstep by those who have levied the accusations. It also effectively stipulates that Hamas has no agency for its own conduct.
Now, it is fully conclusive that Hamas has systematically weaponized civilian and humanitarian infrastructure throughout Gaza.[24] It is without a doubt that when assessing the law correctly a reasonable lawyer would find that protections meant for these places become almost non-existent subject to a proportionality analysis and duty to warn.[25]
The failure to assess this conduct as a means of understanding the application of the provisions of law is a fatal flaw in all of these accusations of genocide against Israel. One of the main reasons for this is it removes the context and culpability from a party while also removing the ability to fight a war that a party has a legal right to fight.[26] Further, it neglects to understand how Hamas’ conduct informs Israeli decision making and how the law applies in such situations.
Another fatal flaw is understanding what Hamas’ attacks on 7 October, 2023 constituted, which itself was the crime of genocide.[27]
However, these are not the only fatal flaws, as the failure to discuss the fact that Israel had a right to war as long as Hamas continued to hold hostages demonstrates a fundamental breach of the understanding of the tests required – and the law.
Because we can discuss legal justification for Israel to fight, that we can ascertain that there are other reasonable explanations for Israeli conduct in light of Hamas’ well-documented abuse of civilian and humanitarian infrastructure, and because those who have levied these accusations have refused to consider these explanations, it can be demonstrated that these accusations were never serious to begin with. Instead, they were meant to cause harm to Israel’s reputation throughout the world and aid Hamas as a combatant party by applying significant pressure to Israel.
Ultimately this causes a much more sinister and serious harm. This serious harm is a signal to Hamas, as a combatant, that it can get away with serious breaches of international law and norms.[28] It gives Hamas the figurative “green-light” to continue such conduct that will inevitably cause more harm to innocent Palestinian civilians.[29]
Moreover, it fundamentally harms the law itself. It leaves the law and international institutions without credibility, directly leading to a more dangerous world.
Another example of this exists at the International Criminal Court (“ICC”). The Prosecutor having sought warrants after cancelling a meeting with Israel to discuss issues including complementarity – a fundamental principle of the ICC that requires deference to domestic courts – only serves to diminish the credibility of the Court itself.[30]
However, that happens to not be the only major issue with the ICC’s investigation and issuance of warrants for Netanyahu and Gallant. For years there has existed extensive evidence of serious crimes against humanity being committed in Gaza against Palestinians and perpetrated by Hamas.[31] Not once has the Office of the Prosecutor (“OTP”) even hinted at an investigation or the seeking of warrants for these crimes committed by Palestinians, against Palestinians.
The message this sends throughout the international legal system is that if a perpetrator is not of the desired group, justice does not matter.
Crimes covered by the Rome Statute includes the prohibition on human shielding,[32] torture,[33] appropriation of property,[34] persecution,[35] attacking civilians,[36] willfully causing great suffering,[37] outrages upon personal dignity,[38] using or enlisting children,[39] sentencing or execution without due process,[40] to name a few. Each one of these are crimes we know that Hamas has committed against the Palestinian people.
A pertinent question must be raised: If the ICC cares about justice for Palestinians, why have they not sought justice for Palestinians when the alleged perpetrator is not Israeli?
From that question, a follow-up question must be asked: What is the status of international law when it is selectively applied?
The selectivity displayed by international actors,[41] entities,[42] and even professionals[43] leads to a degradation of the law and does real harm to it.
If justice only matters when a single alleged party can be blamed, then justice does not truly matter. These people are not seeking justice for anyone but rather spearheading a direct attack on the law to castigate a single party.
For international law to regain a sense of credibility it must demand that professors and practitioners, NGO’s and the UN, and states and media, all act to rescue it from the depths of harm that they have caused. It means holding accountable actors who are the actual perpetrators of these crimes that so many have spent two years screaming about, instead of going after the state who had a valid casus belli to go to war when its people were killed in an actual genocide and taken hostage.
† Elliot M. Malin is a lawyer and policy expert who has led efforts to seek justice for victims of genocide at the International Criminal Court and through various mechanisms available to them. He has worked to codify the requirements of the Genocide Convention into statute as a means to assist in teaching students what genocide is. Elliot received his Juris Doctorate from Syracuse University, a Master of Art in Strategic Communication from the University of Iowa, and a Master of Public Administration from the University of Nevada, Reno.
[1] See Andrew Tucker, Using the ICJ as a Political Weapon Against Israel – and Avoiding the Real Problem of Terror, THINC (Jan. 30, 2025), https://thinc-israel.org/articles/using-the-icj-as-a-political-weapon-against-israel-and-avoiding-the-real-problem-of-terror/.
[2] See International Human Rights Law, UNCHR, https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law (last accessed Oct. 14, 2025).
[3] Susan W. Tiefenbrun, Semiotic Definition of Lawfare, 43 Case W. Res. J. Int’l L. 29, 29 (2010). (“Lawfare” is a weapon designed to destroy the enemy by using, misusing, and abusing the legal system and the media in order to raise a public outcry against that enemy.”)
[4] See Genocide Emergency Alert: Israel and Gaza, Genocide Watch, https://www.genocidewatch.com/single-post/genocide-emergency-alert-israel-and-gaza (last accessed Oct. 14, 2025), see also Raz Segal, A Textbook Case of Genocide, Jewish Currents (Oct. 13, 2023), https://jewishcurrents.org/a-textbook-case-of-genocide. (Both of these accusations of genocide came before Israel had entered into Gaza and truly began fighting the war against Hamas, under any credible accusation of genocide it would be impossible to find genocide had occurred at this point as there was not enough to go on for the actus reus or mens rea.)
[5] Ahmed Asmar, South Africa Reminds ICJ of Netanyahu’s Amalek Rhetoric to Invoke Genocide Against Palestinians, Anadolu Agency (Nov. 1, 2024), https://www.aa.com.tr/en/middle-east/south-africa-reminds-icj-of-netanyahus-amalek-rhetoric-to-invoke-genocide-against-palestinians/3106313.
[6] Ibid.
[7] ‘A Blood Libel’: Herzog says ICJ ‘Twisted My Words’ to Support ‘Unfounded” Contention, Times of Israel, (Jan. 29, 2024), https://www.timesofisrael.com/a-blood-libel-herzog-says-icj-twisted-my-words-to-support-unfounded-contention/.
[8] Nick Schifrin, et al., UN Commission Accuses Israel of Genocide in Gaza. Lawyers Offer Opposing Views on Findings, PBS (Sept. 17, 2025), https://www.pbs.org/newshour/show/un-commission-accuses-israel-of-genocide-in-gaza-lawyers-offer-opposing-views-on-findings.
[9] See for example Salo Aizenberg, UN Watch Rebuttal: Legal Analysis of Pillay Commission’s September 2025 Report to Human Rights Council, UN Watch (Sep. 16, 2025), https://unwatch.org/un-watch-rebuttal-legal-analysis-of-pillay-commissions-september-2025-report-to-human-rights-council/. (“There is no mention of Hamas’s 17-year military buildup in Gaza, including its vast tunnel network, booby-trapped buildings, and massive arms buildup. By ignoring this reality, the report strips the conflict of its military context and recasts lawful military targets as evidence of genocide.”) (Substantive issues arise when any accusation of genocide is levied that fails to address reasonable defenses and the conduct of both parties in a conflict.).
[10] See Bosnia and Herzegovina v. Serbia and Montenegro, Judgement, I.C.J. Report2007, p. 373.
[11] Ryan Park, Proving Genocidal Intent: International Precedent and ECCC Case 002, 63 RUTGERS L. REV. 129, 151-52 (2010).
[12] Jewish Monument – Outdoor Art The Hague, Jewish Monument Found. The Hague, https://bkdh.nl/en/kunstwerken/joods-monument/ (last accessed Oct. 15, 2025). (“At the Star of David is a line from Deuteronomy), one of the five books of the Torah, the Jewish name for the Old Testament. ‘Remember what Amalek did to you… don’t forget. (DEUT: 25.17.19)’ Under it is the same in Hebrew.”) (This is the same line that Netanyahu spoke that is often referenced after a catastrophe to the Jewish people, applying the context of this fails to meet the requirement for ICTY’s first prong.).
[13] Defense Minister Gallant: Gaza Will Never Return To What It Was, i24 (Oct. 10, 2023), https://www.i24news.tv/en/news/israel-at-war/1696961009-defense-minister-gallant-visits-kibbutz-be-eri-destruction. (In the same statement as the “human animals” comment Gallant specifically states: “There will not be a situation where Israeli children are killed in fields and Hamas (emphasis added) continues to exist. I have lifted all restrictions – we kill everyone who fights us (emphasis added), we use all means,” he continued). (Here’s Gallant is specifically referencing Hamas when he describes human animals, not Palestinians. In the context required under ICTY this fails to be a statement indicating genocidal intent as Hamas is not a protected classification and rather a combatant party.)
[14] President Herzog Holds Briefing for International Media, State of Israel – President (Oct. 12, 2023), https://www.gov.il/en/pages/president-herzog-holds-briefing-for-international-media-12-oct-2023. (“We are very cautious in the way we operate. The IDF uses all the means at its disposal in order to reduce harm (emphasis added) to the population. For example, many resources are invested in gather intelligence to locate the enemy separately from civilian population, in evacuating the civilian population from the centre of the battle, warning civilians, and monitoring the humanitarian situation.”) (Here, President Herzog, who cannot act within the chain of command, is directly stating in the same statement that the intent is to protect civilians, not harm them. Again, when placing into context as required by ICTY the accusation fails to be genocidal.).
[15] Gaza War Death Toll at 67,869: Health Ministry, Dawn (Oct. 13, 2025), https://www.dawn.com/news/1948631.
[16] Wafaa Shurafa, Samy Magdy & Josef Federman, Trump Signs Peace Agreement, Last Living Hostages Released, Associated Press (Oct. 13, 2025), https://www.pbs.org/newshour/amp/world/living-hostages-and-palestinian-prisoners-released-as-part-of-gaza-ceasefire. (“The toll is expected to grow as bodies are pulled from rubble previously made inaccessible by fighting.”)
[17] Qais Abu Samra & Betul Yilmaz, Gaza’s Population Drops by 10% Amid Israel’s Genocidal War, Anadolu Agency (Jul. 10, 2025), https://www.aa.com.tr/en/middle-east/gaza-s-population-drops-by-10-amid-israel-s-genocidal-war/3627261. (Gaza’s population was about 2,226,544 before the war.).
[18] See ibid, see also Gaza War Death Toll at 67,869: Health Ministry, Dawn (Oct. 13, 2025), https://www.dawn.com/news/1948631. (67,869/2,226,544=0.03 or 3%.).
[19] Facts About Srebrenica, International Criminal Tribunal for the Former Yugoslavia, https://www.icty.org/x/file/Outreach/view_from_hague/jit_srebrenica_en.pdf (last accessed Oct. 15, 2025). (“The Defence argued that killing up to 7,500 Bosnian Muslims does not constitute a substantial part of the Bosnian
Muslim group, which numbers about 1.4 million people, or even a substantial part of the 40,000 Bosnian Muslims of Srebrenica. … The Trial Chamber found that the evidence disproved the Defence’s claims. Bosnian Serb forces systematically massacred between 7,000 and 8,000 Bosnian Muslim men from Srebrenica during a period of no more than seven days.”) (8,000/40,000=.2 or 20% of the population killed in July 1995 alone.).
[20] Marijke Verpoorten, The Death Toll of the Rwandan Genocide: A Detailed Analysis for Gikongoro Province, 60 Dans Population 331, 333 (2005). (“By subtracting the estimated 150,000 Tutsi survivors, we obtain a death toll of 763,600 Tutsi, representing about 83.6% of the Tutsi population.”).
[21] Israel’s Objectives and Current Operation, Permanent Mission of Israel to the Multilateral Organizations in France (Sep. 17, 2025), https://new.embassies.gov.il/multilateral-organizations-france/en/news/israels-objectives-and-current-operation.
[22] See for example Alexander Cornwell, Israeli Military Warns Gaza City Residents to Leave, Bombs High-Rise Tower, Reuters (Sep. 6, 2025), https://www.reuters.com/world/middle-east/israeli-military-warns-gaza-city-residents-leave-bombs-high-rise-tower-2025-09-06/.
[23] Hamas’ Use of Human Shields in Gaza, NATO Strat. Comm. Centre of Excel. (last accessed October 8, 2025), https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf, see also Douglas J. Feith & Lewis Libby, Humanitarians Should Want Hamas’s Human-Sacrifice Strategy to Fail, Hudson Inst. (Apr. 19, 2024), https://www.hudson.org/terrorism/humanitarians-should-want-hamas-human-sacrifice-strategy-fail-douglas-feith-lewis-libby, see also Louis Rene Beres, Hamas, Not Israel, Is Legally Responsible for Civilian Harm in Gaza, Begin-Sadat Ctr. for Strat. Stu. – Bar Ilan U. (May 8, 2025), https://besacenter.org/hamas-not-israel-is-legally-responsible-for-civilian-harm-in-gaza/, see also Hamas Leader Yahya Sinwar Depicts Palestinian Casualties As ‘Necessary Sacrifices’, Found. Def. Dem. (June 11, 2024), https://www.fdd.org/analysis/2024/06/11/hamas-leader-yahya-sinwar-depicts-palestinian-casualties-as-necessary-sacrifices/. (These are just a small portion of resources that demonstrate the fundamental strategy of Hamas as a tactic to weaponize infrastructure and cause harm to Palestinian civilians, this is extensive and pervasive. It has existed as a strategy for years and any attempt to ignore this destroys any credibility any actor has in talking about human rights, especially those of Palestinians.)
[24] Ibid.
[25] See Geneva Convention Relative to the Protection of Civilian Persons in Times of War arts. 19 & 28, Aug, 12, 1949, 6 U.S.T. 3516 [hereinafter IV Geneva], see also Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol I), Jun. 8, 1977 [hereinafter: Protocol I], art. 51(7).
[26] United Nations Charter art. 51.
[27] Avraham Russell Shalev, Hamas’ October 7th Genocide: Legal Analysis and the Weaponisation of Reverse Accusations – A Study in Modern Genocide Recognition and Denial, Israel L. R. 1, 39 (2025).
[28] Joel Gehrke, Blinken: Israel’s Critics ‘Almost Deafeningly Silent’ on Hamas, Washington Examiner (Apr. 9, 2024), https://www.washingtonexaminer.com/policy/foreign-policy/2960173/blinken-israels-critics-almost-deafeningly-silent-on-hamas/.
[29] See Jason D. Greenblatt, Hamas Is To Blame For the Suffering in Gaza, Newsweek (Jul. 16, 2025), https://www.newsweek.com/hamas-blame-suffering-gaza-opinion-2099680. (“Hamas instrumentalized Gazans not as people to be protected, but as tools of their horrific, twisted, evil warfare. Hamas accepts these civilian deaths as the “cost of doing business.” Indeed, Hamas welcomes the deaths because it knows the world will use them as cudgels against Israel so that Hamas can prolong its long war against the Jewish state.”).
[30] Anthony Deutsch, Stephanie van den Berg & Humeyra Pamuk, Exclusive: ICC Prosecutor Opted for Warrants Over Visit to Gaza, Reuters (Jul. 5, 2024), https://www.reuters.com/world/middle-east/icc-prosecutor-opted-warrants-over-visit-gaza-2024-07-05/, see also Amichai Cohen & Yuval Shany, The ICC Palestine Case in the Aftermath of the Arrest Warrants Decisions – Part One, Articles of War – Lieber Inst. United States Military Acad. (Nov. 25, 2024), https://lieber.westpoint.edu/icc-palestine-case-aftermath-arrest-warrants-decisions-part-one/.
[31] David Luban, What the ICC Prosecutor Charged – and Didn’t Charge – in Gaza Warrants, Just Security (May 22, 2024), https://www.justsecurity.org/95985/icc-gaza-warrant-charges/. (“So far, I have focused on genocide and extermination, and considered the significant of Prosecutor Khan’s decision not to charge genocide. Other omissions are also significant, but hard to interpret. I will mention two.
The first is Hamas’s deep embedding in and beneath civilian structures – human shielding that surely accounts for a great deal of the devastation caused by Israel’s campaign to destroy Hamas. Under the Rome Statute, human shielding is a war crime…”).
[32] Ibid., see also Rome Statute, art. 8(2)(b)(xxiii).
[33] Rome Statute, art. 8(2)(a)(ii).
[34] Rome Statute, art. 8(2)(a)(iv).
[35] Rome Statute, art. 7(1)(h).
[36] Rome Statute, art. 8(2)(b)(i).
[37] Rome Statute, art. 7(1)(k).
[38] Rome Statute, art. 8(2)(b)(xxi).
[39] Rome Statute, art. 8(2)(b)(xxvi) & 8(2)(c)(vii).
[40] Rome Statute, art. 7(e).
[41] See for example Mark Goldfeder & Eugene Kontorovich, Amnesty International’s “Genocide” Smear Against Israel, City Journal (Dec. 17, 2024), https://www.city-journal.org/article/israel-amnesty-international-genocide-smear.
[42] See for example Luke Tress, Critics Accused of Quietly Rewriting Meaning of Genocide to Fling Charges at Israel, The Times of Israel (Sep. 3, 2025), https://www.timesofisrael.com/critics-accused-of-quietly-rewriting-meaning-of-genocide-to-fling-charges-at-israel/.
[43] Ibid.
