an analysis by Amnesty International Israel amid the genocide report
The following analysis is one of the basis for Amnesty International Israel’s position that doubts the assertion according to which genocidal intent can be attributed to Israel in light of its attack on Gaza. This analysis relates to the report by global Amnesty International that accuses Israel of genocide and titled ‘You Feel Like You Are Subhuman’: Israel’s Genocide Against Palestinians in Gaza. It is important to clarify from the outset that we do not doubt the Israeli actions and atrocities in Gaza as described in the report but have very focused criticism on the interpretation that attributes genocidal intent to Israel as a state.
We believe that Amnesty International Israel’s complex position toward the situation in Gaza – which differs from the attitude expressed in the aforementioned report – is an important step to safeguard the universality of human rights. Our aim in this analysis is not to downplay the many horrific atrocities made by Israel in Gaza, which, according to the information we have, seems, on the surface, to have crossed the threshold of crimes against humanity and ethnic cleansing. Rather, our aim is to struggle for professional human rights work closely anchored in the universal principles of International Law and tailored with caution when it comes to innovative interpretations that can represent a certain interest or ideological or political narrative. We take this somewhat conservative approach not out of inclination toward formalism but because this is the way to maintain a broad trust in human rights work and wide legitimization that transcend ethno-national and political lines. We should not be conceived of as another faction in the ongoing fractured public debate. Else, human rights work seems politicized and is only preaching to the converted, which represent the collapse of universalism. Universalism is what we struggle for here, and it is a crucial concept, especially nowadays.
Preamble
As Amnesty International (AI) clarifies in its report, the Genocide Convention and the various legal cases thereafter that revolved around the crime of genocide, require a ”special intent” on behalf of the perpetrators to destroy a group as such, in whole or in part, to prove that a party is committing genocide. Intent may be established in light of formal orders or clear-cut statements by relevant decision makers that indicate genocidal intention or by analyzing the pattern of conduct of the suspected perpetrator. AI’s report, and many other experts, acknowledge that seemingly genocidal statements about Gaza by relevant Israeli decision makers are not enough in order to attribute genocidal intent to Israel as a state: Many of these genocidal statements by the relevant actores (prime minister Netanyahu and then minister of defense Gallant) are vague and may be interpreted as referring to Hamas militants and not to the general population of Gaza (although the very fact that it can be interpreted as referring to Gazans as a whole is horrific and indicates disregard to Gazans and even genocidal culture). Further, clarifications were later issued by the relevant actors to indicate that they referred to Hamas militants and not to Gazans as a whole and they expressed other counter-genocidal statements (e.g., about Israel’s obligation to distinguish between Hamas’ militants and civilians). It is not easy to establish which statement reflects the seniors’ true intention. This is not to deny that a widespread genocidal culture does exist in Israel, but this alone can not prove intent by the state itself.
Without any unambiguous evidence as to the actual intent of decision makers (such as formal orders, meeting records, clear-cut statements by relevant decisions makers etc.), other ways to prove the existence of such ‘special intent’ would require showcasing that the pattern of conduct of the perpetrators cannot be interpreted in any other reasonable way than as stemming out of an intent to destroy the group.
An important part of the process, a mechanism that is clearly referenced in proceedings (as in Bosnia and Croatia genocide cases), is to hold the hypothesis of genocide (i.e., a ‘special intent’ to destroy) against other hypotheses which does not involve an intent to destroy (i.e., non-genocidal intent). The aim of this mechanism is to analyze whether in fact the genocide hypothesis is really the only reasonable one.
It is important to note that refuting an accusation of genocide does not necessarily entail proving that other hypotheses are more reasonable, but rather that they are reasonable enough to cast doubts on the genocide hypothesis, hence to prove that it is not in fact the only reasonable explanation to the actions of the perpetrators. This high bar is not inadvertent but rather intentionally designed to keep the crime of genocide harder to prove.
One such hypothesis that we will examine here is what we dub as “the disregard hypothesis” – that is: Israel was pursuing military goals while showing blatant disregard to Gazans’ lives, but without an intent to destroy the group as such.
Dual intent and instrumental intent are not akin to a byproduct:
It should be noted that it is possible – as AI asserts – that a perpetrator of genocide will have a dual intent (e.g. military goals along side an aspiration to destroy a certain group), but if there is reasonable alternative explanation to the companent of genocidal intent, an accusation of genocide can not be established. Put differently, if the devastation experienced by the victim group may be, for example, a result of recklessly pursuing legitimate military goals by the suspected perpetrator, various international crimes may be attributed to such conduct, but no genocide, since there is no genocidal intent nor dual intent (which entails two different independent goals, not steming from each other).The fact that a dual intent is possible does not mean that the genocidal intent can be reduced to a mere by-product of military goals, as AI’s report implies (a by-product should be distinguished from a tool – see elaboration below).
Alternatively, AI argues that genocidal intent may be a tool to gain military goals (that is, it may be instrumental). In page 35 of the report AI asserts that:
‘Amnesty International considered arguments advanced by some observers that Israel did not intend the destruction of Palestinians; instead, it wanted to destroy Hamas and simply did not care if it needed to destroy Palestinians in the process. This is either another articulation of the recklessness argument rejected above, or it is suggesting that Israel believes it must destroy Palestinians in order to destroy Hamas and simply does not care sufficiently about Palestinian life to reject that course. In other words, the destruction of Palestinians is instrumental to destroying Hamas. Yet, instrumental intent, destroying Palestinians in order to destroy Hamas, is still genocidal intent.’
Because AI’s wording conflates two different states of affairs, it should be clarified that: the disregard hypothesis is not about Israel wanting to destroy Hamas and believing that it must “destroy Palestinians in the process” in order to achieve that, but about Israel wanting to destroy Hamas and not caring that many Palestinian civilians will probably die and get hurt in the process. The former is about a certainty of total destruction; it is not just a by-product but about what the perpetrator believes to be a necessary tool which becomes a subgoal in and of itself, and may constitute a dual or instrumental intent. In contrast, the latter indicates disregard to a possible or probable widespread devastation; it is a by-product, not a goal nor a tool perceived of as necessary by the perpetrator (which entails a subgoal). Hence, the disregard hypothesis may serve as a reasonable alternative to the genocidal intent hypothesis – whether it is framed as instrumental or dual – so such an intent can not be established.
To be clear, it may be more reasonable to assume that Israel wanted to inflict great suffering on the civilian population in Gaza as a tool to fight Hamas and rescue the hostages (e.g., so that Gazans will rebel against Hamas or will pressure the organization to release hostages). In this light we can see the Israeli policy toward humanitarian aid which seems to blatantly violate IHL. This may indeed be an instrumental crime – with the suffering inflicted on the Gazans as a subgoal for other military goals. But there is no supportive evidence that such a policy was intended to destroy the Gazans rather than make them suffer and utilize their agony. Sadistic and cruel as it is, it is not sufficient for establishing intent to destroy.
In short, as Adil Haque of Just Security (who supports AI’s genocide report) puts it: “an applicant must show that it is unreasonable to infer from the evidence that the respondent acted *without* genocidal intent.” That is, if an alternative hypothesis can reasonably demonstrate how the pattern of conduct of the accused party may make sense without genocidal intent, such an intent can not be established, nor do dual or instrumental intent.
Confusing intentionality of means with intentionality of ends:
At times, AI’s report conflates two aspects of intent: intent of means and intent of ends – with the latter relatively neglected. It is not arguable that virtually all the means (tactics, policies) that Israel had deployed in this war were intentional; the question is whether they were intended to bring about a certain state of affairs – the destruction of the Palestinians in Gaza, in whole or in part. The ends, not the means, should be attributed to intent. AI’s often put emphasis on trying to demonstrate that the means used by Israel were intentional and fail to demonstrate that the ends were a matter of intent (i.e., a desired state of affairs pursued by Israel). Further, when AI tries to link the intentionality of means with intentionality of ends it does so without any reasonable argument – it just asserts that this is the case (that the said means are “calculated to bring about the physical destruction of Palestinians in Gaza”, but this is what needs to be proved). Lastly, AI largely fails to demonstrate that the inevitable result of the means deployed by Israel is the destruction of the population. For example, “Israel’s control over humanitarian aid”, have created a horrific catastrophe in the Gaza strip and may amount to a crime against humanity, but there are no proofs that this control has resulted, in and of itself, in a large scale death within Gaza or in inevitable and irreversible large scale serious health hazards, which may hint toward a plan to destroy the group. It should also be noted that to some extent the catastrophic situation in Gaza may not be attributed only to Israel’s actions (limiting the scope of humanitarian aid, which is more compatible with genocidal intent) but also to Israel’s inaction (failing to act, as the occupying power, to prevent looting of aid trucks and mal distribution – which is more in line with indifference rather than genocidal intent).
The paragraph below demonstrates these shortcomings (pp. 280-281):
‘Amnesty International likewise considered and rejected the argument that Israel is acting recklessly, without specific intent to destroy Palestinians in Gaza. Many of Israel’s unlawful acts are, by definition, intentional, including arbitrary and unlawful detention and torture. Similarly, Israel’s control over humanitarian aid was precise and deliberate, with no indication of recklessness. Israel’s repeated mass “evacuation” orders of Gaza’s population to areas that lacked the basic infrastructure to support life, coupled with its failure to allow the temporary relocation of civilians to other parts of the OPT or to enter Israel, were intentional and clearly designed to confine Palestinians to an ever smaller and more inhospitable area of Gaza, with insufficient humanitarian aid and other essentials. In other words, Israel deliberately inflicted conditions of life calculated to bring about the physical destruction of Palestinians in Gaza. Moreover, while, in principle, Israel’s direct attacks on civilians and civilian objects and indiscriminate strikes could be the result of recklessness, it strains belief that these could be anything other than intentional after so many months of recurring attacks, in defiance of legally binding orders by the ICJ, multiple resolutions of the UN Security Council and numerous warnings.’
Without well establishing the intentionality of ends the need to seriously examine an alternative explanation to genocidal intent becomes even more crucial.
The weakness of the alternative hypothesis sub-chapter in the report:
AI Israel is concerned that the alternative hypothesis sub-chapter in the report is unconvincing and written in a precarious way. In specific, it fails to genuinely represent important arguments that provide context, alternative explanations and other facts in regard to Israel’s conduct and intentions. The proper way to go about writing such a subchapter is to play the devil’s advocate as candidly as possible, or rather ask someone internal (or, even better, someone external) to write this part with all seriousness, providing gravity and real thought into the alternative hypothesis, all of this in order to avoid self-misleading, cherry-picking and other fallacies. Unfortunately, we believe that this is not the case in this report. What we have, instead of a serious analysis, is a straw man – a weaker, unserious version of the alternative hypothesis, which makes an easy target, but serves poorly as a method to deal with such important issues. Some arguments were not discussed while some were mentioned but immediately dismissed or belittled. Moreover, the analysis section that compares between the hypotheses is totally lacking, and is merely claiming that the report’s hypothesis is more convincing, to the point that it is the only one that makes sense – without actual proper discussion and scrutiny.
In our view, not only does this make the report less grounded and easier to attack, it actually makes the entire argument of genocide shaky and less-founded in serious analysis. Most importantly – if the alternative hypothesis actually provides a reasonable explanation towards Israel’s conduct, one that doesn’t include a special intent to destroy, then the whole report is wobbly and should be rethought of.
It is important to note – AI has not yet tackled this type of analysis. Proving the crime of genocide is very different from proving crimes against humanity, war crimes and other internationally defined violations – exactly due to the ‘special intent’ condition. The report indeed spends many pages on exactly this point. However, failing to provide a proper analysis of the alternative hypotheses section is a flagrant problem, as it raises questions, once again, about the impartiality of AI in general and the report specifically.
Hence, In this document, we wish to introduce a first, initial attempt towards an alternative hypothesis. One that we think should be examined seriously and in-depth. And, in fact, an alternative hypothesis that we believe can provide reasonable competing intent rather than an intent to destroy or the dual intent – ‘reaching military objectives while showing blatant disregard to Palestinian lives’ (the disregard hypothesis). This means that the genocidal intent and even the dual intent explanations collapse, since, if this hypothesis is reasonable, the devastation experienced in Gaza is a by-product of military goals and not an end in and of itself so there is no independent genocidal intent existing side by side with military goals.
The alternative hypothesis to intent to commit genocide
AI argues that the totality of Israel’s policies and practices in Gaza since October 2023 can not be interpreted in any other reasonable way but as an intent to destroy the Gazans, in whole or in part (i.e., as a genocide). We will demonstrate below that taking into account the widest range of relevant facts indicates that Israel’s intent when striking Gaza might be different than a will to destroy the Gazans as a group, in whole or in part. Rather, it seems that from an IHL perspective, Israel was aspiring to reach legitimate military objectives while showing blatant disregard for Palestinian lives, which is of course manifested in severe breaches of International Law and probably crimes against humanity (which also entails a highly serious crime). That is, Israel may have committed severe crimes in Gaza, but in order to define them as a genocide one needs to demonstrate that the intent to destroy the group is the only plausible inference. A robust alternative hypothesis will demonstrate that this is not the case. For this purpose, we can juxtapose two different hypotheses: the disregard hypothesis (pointing to Crimes Against Humanity – CAH) and the intent to destroy hypothesis (pointing to genocide) and see who is more compatible with the widest range of relevant facts.
1. Israeli AI system aimed at designating individuals in Gaza to be targeted is prone to errors and killing of civilians but demonstrates a loose attempt to establish some level of selectivity.
According to leaked information an AI established by Israel to target sites and individuals in Gaza. While it’s clear that the Israeli AI system allowed the military to produce an unimaginable number of targets and while it has been proven that they were deciding to kill them with their families, it also might show at least on the surface some level of selectivity. This supports an alternative explanation that shows that Israel did fight hamas but was apathetic to Gazens life in a disturbing and cruel way that must be further investigated.
The renowned investigative journalism piece on AI roles in Gaza by Yuval Abraham actually demonstrates this:
“[…] the Israeli army systematically attacked the targeted individuals while they were in their homes — usually at night while their whole families were present — rather than during the course of military activity. According to the sources, this was because, from what they regarded as an intelligence standpoint, it was easier to locate the individuals in their private houses”. That is, the home targeting was done as a combination of military/intelligence considerations and due to Israel’s disregard to Gazan civilian casualties rather than as the desired tactic for maximizing civilian casualties and destroying the group as such.
2. Humanitarian aid to Gaza – it was drastically limited but not completely blocked and neglect can better explain some of the catastrophe
Israel limited the humanitarian aid to Gaza to the point that a humanitarian catastrophe took place in the strip, which constitutes a horrific situation and probably amounts to a crime against humanity. But we don’t know if we have the tools to come to a firm conclusion that this goes beyond the horrific use of starvation as a weapon or tool which aims to inflict suffering. It is in and of itself a violation of international law, but may not relate to a goal to destroy Gazans. We don’t eliminate this option but we don’t think it is clear to us since there are some mitigating factors:
Israel did not block the humanitarian aid flow altogether, many border crossings were destroyed by Hamas attacks (and by the fighting more generally) which made it harder to transport aid at large scope (e.g. by creating traffic jams in the remind border crossings), and security screening of goods was tightened since October 7 and also caused delays (with Israel doing far from enough to find solutions to these objectives setbacks). Further, many aid trucks which did enter Gaza have not reached those in need because of internal problems (mainly looting and maldistribution) with the occupying power (Israel) doing far from enough to mitigate these shortcomings. Nevertheless, countries that requested permission to supply humanitarian aid to Gaza by land, air or sea, were largely always approved for access. Causing a forced humanitarian crisis and the use of starvation are anyway unforgivable cruell and illegal actions in war that led to much misery and unknown casualties.
All in alli, this pattern also hints at disregard rather than intent to destroy.
3. Designated safe zones and humanitarian corridors for the civilian population in Gaza were not in fact safe but were not hit in the same fashion as other areas.
In the so-called “safe zones” we have witnessed too many tragic bombings but not a “carpet bombing” which suggests a will to annihilate the population at large. It should be noted that one should not compare the scope of civilian casualties between “safe zones” and non-” safe zones” since Hamas militants were also taking cover in the so-called “safe zones” and strikes in such areas naturally lead to more civilian casualties, since more civilians are crowded there. Disproportionality seems to better capture the essence of such attacks than an aim to annihilate the population at large, which is in line with the disregard hypothesis.
4. Hamas’ strategy to embed itself within civilians can explain the massive devastation at residential areas, hospitals, schools etc, rather than the intent to destroy these areas and facilities as such
So the scope and severity of the destruction and death toll may be attributed to a combination of Hamas’s strategy to camouflage itself within the population and Israel’s disregard for the life and well-being of that same population.
5. Israel assist in a vaccination campaign against polio in Gaza
NPR reports on the vaccination efforts in the Gaza Strip: “it was crucial that the Israeli army and Hamas agree to briefly pause the fighting in different areas especially for the immunization effort. These respites allowed the vaccination teams to disperse throughout the enclave.” Also, according to WHO the vaccines were brought to Gaza through Ben Gurion airport – that is, they were delivered via Israel. When your intention is to destroy a group you do not assist a vaccination campaign aimed at protecting its children and youth.
It should be noted that virtually all Israeli soldiers and the vast majority of the Israeli population is vaccinated against polio, so the Israeli assistance can not be attributed only to cynical self-interest (i.e., trying to prevent the virus from spreading into Israel).
6. The ammunition used: massive use of expensive accurate missiles rather than mostly cheap artillery.
7. Only a few genocidal statements were made by relevant decision-makers and many counter-genocidal statements were made by them.
8. Israel’s military campaign was unfolding under constant fire by Hamas (and its allies) so the magnitude of fire and force may also be attributed to these settings
The death-toll rate in Gaza largely declined as the battlefield became less intensive, which indicates a linkage between civilian casualties in Gaza and the intensity of fighting.
Summing up the data and relevant facts it seems that the “disregard hypothesis” is much more compatible with the widest range of relevant facts than the “intent to destroy hypothesis” which seems to contradict many facts while the “disregard hypothesis” is in line with any relevant fact.
Furthermore, the press release by AI presenting the report states that “The organization [AI] also considered alternative arguments such as the one that Israel is acting recklessly or that it simply wanted to destroy Hamas and did not care if it needed to destroy Palestinians in the process, demonstrating a callous disregard for their lives rather than genocidal intent.
However, regardless of whether Israel views the destruction of Palestinians as instrumental to destroying Hamas or as an acceptable by-product of this goal, this view of Palestinians as disposable and not worthy of consideration is in itself evidence of genocidal intent.”
This assertion indicates that AI acknowledges the alternative hypothesis (the disregard hypothesis) to be, to the very least, a possible and valid explanation of Israel’s conduct during the war in Gaza. They, nevertheless, try to interpret such disregard as yet another form of intent to destroy a group, which is at odds with the essence of what intent is and with acceptable interpretations in the field.