“You will die, your children will die, your grandchildren will die, there won’t be a Palestinian state, there won’t be.”
– Hanoch Milwidsky, Member of the Knesset, February 21, 2024
‘THE ESSENCE OF CHILDHOOD HAS BEEN DESTROYED’ writes the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, which last month published a comprehensive report on Israel’s targeting of Palestinian Children in the ongoing conflict in Gaza between October 7, 2023 and March 31, 2026.
Unlike previous reports, which examined civilian harm more broadly, this report adopts a child-centered approach, examining how the conflict has affected every aspect of childhood, including physical survival, health, education, family life, mental wellbeing and future development. The Commission argues that Palestinian children have suffered not merely incidental harm resulting from military operations, but have been exposed to a pattern of violence that has fundamentally altered the conditions necessary for childhood itself.
Beyond battlefield casualties, the Commission examined the cumulative effects of military operations, displacement, detention, destruction of civilian infrastructure and prolonged humanitarian deprivation. The report, therefore, presents childhood as a legal and humanitarian category deserving special protection under international law and argues that the systematic erosion of these protections has produced long-term consequences extending beyond immediate physical injury. The report demonstrates that beyond solely mortality figures, children’s victimization should also be measured by considering developmental, psychological and societal harms.
The commission points out grave violations of international criminal law and international humanitarian law. It finds evidence of both, violations of customary international humanitarian law and triggering of Articles of the Rome Statute, particularly on Articles 7 (Crimes Against Humanity); Article 8 (War Crimes). While it steps short of concluding on genocidal intent, it does say that various elements of actus reus under Article 6 of the Statute are satisfied.
In this report, we critically examine the Commission’s conclusions through the broader framework of international criminal law, analysing its findings on war crimes, crimes against humanity and violations of international humanitarian law, while assessing their legal basis and interrelationship. Our principal focus, however, is on the report’s significance for the crime of genocide. Although the Commission stops short of concluding that genocidal intent has been established, we examine whether its extensive factual findings provide additional evidentiary support for inferring the specific intent (dolus specialis) required under Article 6 of the Rome Statute.
While South Africa’s case against Israel for violation of the Genocide Convention remains open, we also analyse how the Commission’s reasoning may shape the evolving jurisprudence on proving genocidal intent, alongside an evaluation of the principal legal defences advanced by Israel.
Key Findings of the Report: A Summary
The Commission concludes that Palestinian children have suffered systematic, widespread and multidimensional harm since October 7, 2023. Drawing upon witness testimony, medical records, satellite imagery, forensic analysis and digital verification, the report documents patterns of violence extending far beyond battlefield casualties. It finds that children have been affected physically, psychologically, socially and developmentally through military operations, prolonged occupation policies and the collapse of civilian infrastructure. Together, these findings portray a cumulative assault on every dimension of childhood.
Unprecedented Physical Harm to Palestinian Children
The Commission reports that at least 20,179 Palestinian children were killed and over 44,000 injured between October 2023 and October 2025, accounting for nearly 30 percent of all recorded deaths in Gaza. Thousands more remain buried beneath collapsed buildings or are presumed missing because rescue teams have been unable to recover bodies.
The report attributes this unprecedented casualty rate primarily to the extensive use of explosive weapons in densely populated civilian areas. Survivors have suffered amputations, spinal injuries, blindness, hearing loss and severe polytrauma, making Gaza home to the world’s largest population of child amputees. The Commission concludes that the conflict has left an entire generation facing lifelong physical disabilities and rehabilitation needs.
Deliberate Targeting of Children
Beyond casualties resulting from explosive weapons, the Commission documented several incidents suggesting that Palestinian children were intentionally targeted. It investigated the killing of Hind Rajab, a six-year-old girl trapped in a vehicle after six members of her family were killed; the Palestine Red Crescent ambulance sent to rescue her was also attacked, killing the two paramedics. The report further records the shooting of a 10-day-old infant while being breastfed in a displacement tent, a four-year-old girl shot while eating with her family in Khan Younis, and two young brothers killed by a drone strike while collecting firewood near the designated ‘yellow line’.
Based on witness testimony, forensic assessments, CT scans and medical evidence, the Commission identified recurring patterns of gunshot wounds to children’s heads and upper bodies consistent with the use of precision weapons rather than indiscriminate fire.
Arbitrary Arrest, Detention, Sexual and Gender-Based Violence Against Children
The Commission documented a marked increase in the arrest and detention of Palestinian children, particularly adolescent boys in Gaza and the West Bank. It recorded several incidents where children were stripped to their underwear, blindfolded, handcuffed and transported to undisclosed detention facilities without communication with their families.
The report highlighted numerous such instances, one being the death of 17-year-old Wali Ahmed in Megiddo Jail as he was tortured. The report also documented sexual and gender-based violence, including forced public nudity, regular strip searches, threats of rape and sexual assault, sexualised insults, and the photographing and filming of naked or semi-naked boys under guard. Many detained children were reportedly labelled as ‘terrorists’ despite being minors. The report concluded that these practices exposed children to severe physical and psychological harm while heightening their vulnerability during detention.
Destruction of Child-Survival Infrastructure
The Commission identified the destruction of healthcare, orphan care and educational infrastructure as making conditions equivalent to ‘slow death’ of Palestinian children. All three specialized pediatric hospitals in Gaza were forced to cease operations within the first two months of hostilities.
Al-Nasr Pediatric Hospital was attacked three times in November 2023, resulting in the death of an infant after electricity to life-support equipment was cut, while four decomposing premature babies were later found abandoned in its neonatal intensive care unit. The report also noted that the number of functioning neonatal incubators fell from 178 before the conflict to only 54, while also noting the increase in underweight births and infant mortality and mothers resorting to unsanitary feeding practices to supplement breast-milk.
In the education sector, more than 97 percent of schools in Gaza were damaged or destroyed, while military operations and restrictions affected approximately 8,06,000 students in the West Bank.
Humanitarian Deprivation and Conditions Causing Slow Death of Children
The Commission concluded that prolonged siege, starvation, repeated displacement and restrictions on humanitarian aid created living conditions incompatible with children’s survival and development.
Between October 2023 and October 2025, approximately 58,554 children lost one or both parents, while around 18,000 children became unaccompanied or separated from their families. Doctors at Al-Shifa Hospital coined the term ‘Wounded Child No Surviving Family’ (‘WCNSF’) after treating 120 children admitted without surviving relatives within the first five weeks of the conflict. Medical personnel described performing surgeries without anesthesia due to shortages of medicines and fuel, while one 13-year-old survivor reported surviving on cat food and ground donkey feed during the siege. The report further documents children dying from hypothermia after repeated displacement. It concluded that deprivation of food, water, healthcare and shelter significantly increased preventable illness, malnutrition and child mortality.
Psychological Trauma
The report concluded that nearly every Palestinian child in Gaza has experienced repeated displacement, bombardment, bereavement or the destruction of their home. Mental health professionals interviewed by the Commission described widespread symptoms of anxiety, depression, post-traumatic stress disorder and developmental regression among children. Healthcare workers also reported increasing numbers of children presenting with emotional withdrawal, loss of speech and persistent nightmares. The Commission concluded that these harms are likely to shape children’s emotional development, education and future life opportunities for generations.
Dehumanization of Palestinian Childhood
The overarching finding supports the dehumanization of Palestinian childhood by Israel. The Commission documented incidents in which Israeli soldiers allegedly mocked children’s belongings, destroyed toys, vandalized schools and circulated videos depicting the humiliation of Palestinian civilians.
Portrayal of Palestinian boys as ‘terrorists’ or legitimate military targets despite their civilian status was also noted along with similar dehumanizing statements by Israeli politicians. According to the Commission, these practices, viewed alongside repeated attacks affecting children, contributed to the erosion of children’s protected status and normalized violence directed against them. The report argued that this dehumanization undermined children’s dignity, identity and recognition as rights-bearing individuals deserving of special protection under international law.
The Commission’s Findings and Calls for Accountability
Based on its factual findings, the Commission concluded that there are reasonable grounds to believe that multiple serious violations of international law have been committed against Palestinian children. It identified conduct that may constitute wilful killing, extermination, persecution, torture, enforced disappearance, sexual and gender-based violence, attacks against protected civilian objects, reproductive violence and the deliberate creation of life-threatening conditions affecting children’s survival.
The report recommended continued investigation by the International Criminal Court, enhanced international cooperation in accountability mechanisms, reparative measures for child victims and stronger implementation of international obligations to protect children during armed conflict. This factual record forms the basis for the subsequent analysis of whether the Commission’s findings satisfy the constituent elements of international crimes under the Rome Statute.
Where Does the Report Stand Under International Criminal Law?
While the Commission's report is primarily a fact-finding exercise, its significance extends beyond documenting humanitarian suffering. By concluding that there are ‘reasonable grounds to believe’ that multiple international crimes have been committed, the report seeks to translate patterns of violence against Palestinian children into the language of individual criminal responsibility under the Rome Statute of the International Criminal Court (hereinafter ‘ICC’).
Unlike international humanitarian law, which primarily governs the responsibility of States, international criminal law focuses on the criminal liability of individuals responsible for the commission of atrocity crimes.
The report therefore raises an important legal question: Do the documented facts satisfy the constituent elements of war crimes, crimes against humanity and genocide under the Rome Statute based on judicial precedent?
This section critically evaluates the Commission’s findings against the applicable legal framework to answer this question.
War Crimes: Assessing the Commission's Findings under Article 8 of the Rome Statute
William Schabas opines that Article 8 of the Rome Statute as the most comprehensive codification of war crimes ever as it codifies grave breaches of the Geneva Conventions and other serious violations of the laws and customs of war, requiring that the alleged conduct occur in the context of and be associated with an armed conflict.
In Prosecutor v Tadić (1999), the International Criminal Tribunal for Former Yugoslavia’s (hereinafter ‘ICTY’) Appeals Chamber held that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”. Given the sustained hostilities following October 7, 2023, the Commission's findings clearly satisfy this contextual threshold.
The Commission’s principal legal conclusion concerns wilful killing and intentionally directing attacks against civilians under Articles 8(2)(a)(i) and 8(2)(b)(i) of the Rome Statute. The Elements of Crimes state that intentional attacks against civilians require proof that the perpetrator intentionally made civilians, including children, the object of the attack. In contrast, wilful killing is established where the perpetrator intentionally causes the death of a protected person while knowing that the victim enjoys protected status under international humanitarian law.
This inquiry is governed by the principle of distinction, codified in Articles 48 and 51 of Additional Protocol I, which requires parties to distinguish between civilians and combatants at all times.
In Prosecutor v Blaškić (2004) (hereinafter ‘Blaškić’), the ICTY Appeals Chamber reaffirmed that civilians retain their protected status unless and for such time as they directly participate in hostilities. Israel has claimed that Hamas has embedded its fighters within civilians and hence the civilians are ‘collateral damage’. Further, there exists ambiguity as to when a civilian can be held to be ‘directly participating’ in hostilities. The ICRC Guidance dictates direct participation in hostilities requires that an act
(i) is likely to adversely affect the military operations or capacity of a party to the conflict, or inflict death, injury or destruction upon protected persons or objects (threshold of harm);
(ii) bears a direct causal link to that harm (direct causation); and
(iii) is specifically designed to support one party to the conflict to the detriment of another (belligerent nexus).
All these criteria have not been assessed by Israeli Defence Forces, especially when attacking children.
Any such claims regarding direct participation also do not strip the entire population of a territory like Gaza of their civilian character as the ICTY Trial Chamber noted in Prosecutor v Karadzic (2016). The principles of distinction and proportionality and the presumption of civilian character still apply. Thus, when Israeli forces target civilian infrastructure wantonly without following distinction and target children as seen above, the intent of them being made the object of attack is manifested. Hence the findings of the commission on these facts hold substantial weight.
The Commission also concluded that the repeated destruction of hospitals, schools and humanitarian facilities may constitute the war crime of intentionally directing attacks against protected civilian objects under Article 8(2)(b)(ix). International humanitarian law accords enhanced protection to medical units and educational institutions because of their indispensable civilian functions. Articles 18 and 19 of the Fourth Geneva Convention and Articles 12 and 52 of Additional Protocol I prohibit attacks against such facilities unless they are used, outside their humanitarian purpose, for military acts.
In Prosecutor v Strugar (2005), the ICTY Trial Chamber held that attacks against protected civilian objects violate the laws and customs of war unless justified by military necessity, while in Prosecutor v Kupreškić (2000) (hereinafter ‘Kupreškić’) The ICTY Trial Chamber stressed that the principles of distinction, proportionality and precaution continue to govern attacks even where military objectives exist nearby.
The chief question remains that of intent as the Elements of Crimes again stresses on the object of attack being such objects and the intention of the perpetrator to target them. The element of deniability remains with Israel as it can argue ‘collateral damage’, but using explosive weapons on a wide scale on densely populated civilian areas, with few military objects does not give them a case. Extensive documentation of repeated attacks on civilian power, water, food and health infrastructure have been noted already by the UN. Hence the finding of intent, by the scale of evidence collected appears to be substantially proven.
Intent is the highest form of mens rea and is notoriously difficult to prove directly. The International Criminal Tribunal for Rwanda (hereinafter ‘ICTR’) in Prosecutor v Akayesu (1998) (hereinafter ‘Akayesu’) had ruled that intent should be inferred from context of the conflict, that establishes covert if not explicit state policy, by statements of leaders, prolonged inaction after knowledge of crimes etc. Also, while discussing proportionality and intent in Prosecutor v Galic (2003), the ICTY Trial Chamber gave consideration to distance between victim and the most probable source of fire; and between the location where the victim was hit and the confrontation line; appearance of the victim as to age, gender, clothing; the activity the victim could appear to be engaged in etc.
Instances of Israeli attacking children waving white flags, collecting firewood and travelling to schools and shooting newborns, attacking maternal-fetal wards of hospitals, and shooting children at close-range, coupled with dehumanising statements of Israeli leaders towards children of Palestinian descent point to the element of intent squarely.
Perhaps the Commission’s strongest legal findings concern the treatment of Palestinian child detainees. Unlike battlefield operations, where questions of military necessity inevitably arise, detention occurs entirely under the control of the detaining authority and therefore attracts heightened legal protection. Articles 3 and 27 of the Fourth Geneva Convention, together with Articles 8(2)(a)(ii) and 8(2)(b)(xxi) of the Rome Statute, prohibit torture, cruel treatment and outrages upon personal dignity. In Prosecutor v. Mucic, Delic, Landzo and Delalic (1998) the ICTY Trial Chamber held that torture consists of the intentional infliction of severe physical or mental suffering for purposes such as punishment, intimidation or coercion. Likewise, the ICTY Trial Chamber in Prosecutor v Kunarac, Kovač and Vuković (2001) (hereinafter ‘Kunarac’) recognised that rape, sexual humiliation and other forms of sexual violence may themselves amount to torture because of the profound physical and psychological suffering they inflict.
The above instances of torture and gender-based/ sexual violence, as discussed including those of explicitly filming semi-nude detainees and sexually insulting them, and strip searching them all point to the overwhelming use of torture and sexual violence. Instances of psychological trauma inflicted by the Israelis by raids, and dehumanization of children as ‘terrorists’ and even mocking their toys further support this claim. In her February 2026 report, Francesca Albenese, the UN Special Rapporteur on Occupied Palestinian Territories documented similar patterns of conduct that satisfy torture requirement under the Genocide Convention.
Israel takes the defence of necessity for these situations. The Israeli Supreme Court famously allowed the necessity defence to be valid for torture in exceptional circumstances in Public Committee Against Torture in Israel v The State of Israel (1999) under Israeli Penal Code. However, this runs contrary to Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Hence, the defence of necessity carries no weight.
Crimes Against Humanity: From Isolated Violations to a Widespread or Systematic Attack
While the Commission’s findings raise substantial questions regarding the commission of war crimes, they also invite consideration of whether the documented conduct satisfies the higher contextual threshold for crimes against humanity under Article 7 of the Rome Statute.
Unlike war crimes, which require a nexus with an armed conflict, crimes against humanity criminalize certain acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. As Schabas notes, the defining characteristic of crimes against humanity is not the prohibited act itself but its integration into a broader campaign against civilians, thereby distinguishing such offences from isolated violations of international humanitarian law.
The first contextual requirement is the existence of an attack directed against a civilian population. Article 7(2)(a) defines an attack as a course of conduct involving the multiple commission of prohibited acts against civilians.
In Prosecutor v Martic (2008), the ICTY Appeal held that it could not allow the term ‘civilian’ for the purposes of a crime against humanity to include all persons who were not actively participating in combat, including those who were hors de combat at time of the crimes, as this would blur the distinction between combatants and non-combatants. It also held that any aspect of nationality is irrelevant in determination of civilian status. It is well established that Palestinian civilians, especially children fit these criteria.
In Kunarac’s Appeal Judgment (2002), the ICTY Appeals Chamber clarified that an ‘attack’ is not confined to military operations but encompasses any organised campaign involving repeated unlawful acts directed against civilians. Likewise, the ICC in the trial judgment of Prosecutor v Katanga (2014) held that the attack consists of a pattern of conduct rather than isolated incidents. Apart from the patterns of attacks discussed above, the Commission documented irregular attacks by Israeli settlers in Gaza have been aided to attack Palestinian civilians, with the settlers carrying out at least 1000 attacks since October 2023. Israel also has plans to repopulate Gaza with Jewish settlers once the Palestinians are relocated. Forced displacements have been used systematically to exhaust and demoralize civilians and these two circumstances can also be called an ‘attack’ under Article 7.
‘Systematic’ has been defined in Blaškić’s Trial Judgment (2000) as when the attack is a covert or overt policy of the government to fulfil a political aim, with a written policy not required but inferred by circumstances. ‘Widespread’ has been defined in Akayesu as the occurrence of an act on a large-scale with multiple victims. The Appeals Chamber Blaškić also recognised that repetition, planning and the organised use of State or military resources may demonstrate systematicity. The above instances highlighted show that the scale of death and injuries makes the attack widespread and combined with repeated attacks on civilian infrastructure and forced displacement orders, the attack appears ‘systematic’.
A subpart of the ‘systematic’ requirement under the Rome Statute is that the attack be committed pursuant to or in furtherance of a state policy. Schabas explains that although customary international law did not expressly require proof of policy, the Rome Statute deliberately incorporated this element to distinguish crimes against humanity from ordinary criminal conduct.
The ICC in Prosecutor v Bemba (2016) and the ICTY Trial Chamber in Blaškić held that such a policy need not be formally declared but may be inferred from repeated acts, coordinated implementation and the mobilisation of State institutions or organisational resources. While the European Court of Human Rights has noted reservations with this requirement in Korbely v Hungary (2008).
The Commission does not purport to establish the existence of such a policy conclusively. But a new and comprehensive database, compiled by Law for Palestine, which meticulously documents and collates statements that embody the Israeli state’s intention to annihilate Palestinian State, can serve as useful to determine, that it has long been the policy of the Israeli State to annihilate the Palestinian State.
Now coming to the acts committed under Article 7, we restrict ourselves to Extermination and Prosecution, as they are the most notable findings and rest have been discussed above. The ICC’s Elements of Crimes require that the perpetrator killed, or intentionally inflicted conditions of life calculated to bring about the destruction of part of a civilian population, as part of a widespread or systematic attack. In Prosecutor v Stakić (2003), the ICTY Trial Chamber held that extermination encompasses both mass killings and the deliberate creation of conditions that inevitably result in large-scale death, including deprivation of food, medicine and other necessities indispensable to survival.
The Commission relied on cases of indiscriminate bombing and shelling of civilian areas with precision weapons, quadcopters and drones, sniper shootings with upper-body injuries to children of all ages, indicative of their deliberate targeting. Even when the Israelis knew children were present in civilian areas they still did not change the weapons used, which signifies intent. Further, denial of humanitarian aid and food has induced famine and starvation, with conditions of ‘slow death’ being rampant.
The Commission’s findings also engage the crime of persecution under Article 7(1)(h). Unlike many crimes against humanity, persecution is inherently discriminatory. As held by the ICTY Trial Chamber in Kupreškić, persecution consists of the intentional and severe deprivation of fundamental rights on discriminatory grounds, with the prohibited acts assessed cumulatively rather than individually. Similarly, in Prosecutor v Krnojelac (2002), the ICTY Trial Chamber observed that persecution may be established through a series of acts which, taken together, deny a protected group the exercise of rights guaranteed under international law.
The Commission documented several instances of the denial of children’s rights to life, health, education, adequate food, humanitarian assistance and family unity, together with restrictions on movement, arbitrary arrests, repeated displacement and increased settler violence against Palestinian communities in the occupied West Bank. It also considered ‘age’ as an ‘other ground’ of discrimination under Article 7. This is consistent with Article 21(3) of the Rome Statute, which requires the interpretation of the Statute to be consistent with internationally recognised human rights and without distinction based on, inter alia, age.
It further identifies repeated public statements by senior Israeli officials which it considers relevant in assessing discriminatory intent. Viewed cumulatively, the systematic deprivation of fundamental rights experienced by Palestinian children closely reflects the approach adopted in Kupreškić, where persecution was understood as the organised denial of human dignity rather than any single prohibited act.
Genocide: The Difficult Question of Intent
Among the three core international crimes, genocide remains the most legally and politically contested. The Commission itself does not conclude that genocide has been established; rather, it finds that the cumulative evidence warrants investigation under the Genocide Convention and the Rome Statute, particularly in relation to the destruction of conditions essential for the survival of Palestinian children.
This cautious approach reflects the complexity of Article 6, whose application has historically been far narrower than its political invocation. As Schabas observes, genocide has increasingly become a political descriptor for mass atrocities, often employed long before the stringent legal requirements of the Convention have been examined.
The Commission’s findings arguably engage four of the five prohibited acts enumerated in Article 6. It documents the killing of members of the group through the unprecedented death toll among Palestinian children; serious bodily and mental harm through widespread amputations, permanent disabilities, torture and severe psychological trauma; and, perhaps most significantly, the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group. The destruction of hospitals, repeated restrictions on humanitarian relief, widespread starvation, forced displacement, collapse of sanitation systems and denial of essential medical care collectively portray what Melanie O’Brien characterizes as indirect methods of destruction, producing what scholars increasingly describe as a process of ‘slow death’ rather than immediate extermination. The Commission also records the systematic collapse of maternity and neonatal healthcare, repeated attacks affecting reproductive services and rising miscarriages associated with starvation and inadequate medical treatment, findings capable of engaging Article 6(d) concerning measures intended to prevent births within the protected group.
Yet the decisive legal issue remains intent. International jurisprudence has traditionally imposed an exceptionally demanding evidentiary threshold. In Bosnia v. Serbia (2007), the International Court of Justice held that genocidal intent must be established separately from the underlying acts and, where inferred from circumstantial evidence, must constitute the ‘only reasonable inference’ capable of being drawn. That approach was reaffirmed in Croatia v. Serbia (2015), where the Court accepted that widespread killings and destruction had occurred but nevertheless declined to find genocide because the evidence did not conclusively demonstrate an intention to destroy the protected group. The ICTY similarly adopted a restrictive approach in Prosecutor v Brđanin (2007), Prosecutor v Krajišnik (2006) and Stakić’s Appeals Judgement (2006), concluding that even severe ‘conditions of life’ were intended to forcibly displace populations rather than physically destroy them.
The Gaza proceedings, however, present materially different circumstances. Unlike the conflicts in Bosnia, where displacement frequently remained an identifiable military objective and escape remained possible, the Commission documented conditions imposed upon almost the entirety of Gaza's civilian population, whose ability to flee or secure the basic necessities of life was severely constrained. The repeated evacuation orders issued from October 2023, coupled with simultaneous restrictions on food, water, fuel, healthcare and humanitarian assistance, created conditions in which survival itself became increasingly precarious. As the World Health Organization warned at the time, evacuating hospitals under such circumstances amounted to a ’death sentence’ for many patients.
These circumstances raise the question: whether the cumulative creation of lethal conditions is more consistent with destruction than with temporary military displacement?
Equally significant is the evolving understanding of intent itself. While genocide has traditionally been associated with a purposive intention to destroy, contemporary scholarship increasingly questions whether such a restrictive interpretation reflects either the text or object of the Genocide Convention.
As the drafting history of the Genocide Convection shows the Convention deliberately employs the phrase ‘intent to destroy’, rejecting earlier drafting proposals requiring destruction ‘for the purpose of’ doing so. Scholars including Alexander Greenawalt and Otto Triffterer therefore argue that genocidal intent may be established where perpetrators knowingly create conditions from which destruction is the foreseeable consequence, even if destruction is not their sole subjective purpose.
The ICTR in Akayesu likewise accepted that genocidal intent may be inferred from surrounding circumstances and observed that an accused is culpable where he ‘knew or should have known’ that his conduct would contribute to the destruction of the protected group. Similarly, the standard was criticised by Justice Cançado Trindade in his dissent in Croatia v. Serbia for imposing a threshold so exacting that it risks making genocide practically impossible to establish while atrocities are still unfolding.
This evolving approach is reflected in the ongoing proceedings before the International Court of Justice. In its January 2024 Provisional Measures Order, the Court concluded that South Africa's claim under the Genocide Convention was plausible, recognising Palestinians in Gaza as a protected group and ordering Israel to prevent genocidal acts. Subsequent provisional measures acknowledged the rapidly deteriorating humanitarian situation, including the emergence of famine and the urgent need for humanitarian assistance.
Although the Court has deliberately refrained from determining whether genocide has occurred at this stage, its repeated intervention demonstrates that contemporary international law is increasingly prepared to infer the plausibility of genocidal intent from the cumulative interaction of repeated conduct, official rhetoric and the systematic creation of life-threatening conditions. The Commission’s findings, viewed against this evolving jurisprudence and supplemented by Francesca Albense’s findings on the same issue since 2024, therefore provide a substantial evidentiary basis for examining genocide while simultaneously exposing the continuing debate over whether the law’s demanding conception of dolus specialis remains compatible with the preventive purpose of the Genocide Convention.
‘Need for an interpretation to prevent, rather than merely punish, genocide’
The Commission's report demonstrates that the harms suffered by Palestinian children extend far beyond the incidental consequences of armed conflict. Its findings provide a substantial evidentiary basis for investigating war crimes and crimes against humanity and, more controversially, reopen the debate on the interpretation of genocide in contemporary international law.
The principal obstacle is no longer the absence of evidence, but the continued insistence on an exceptionally restrictive conception of dolus specialis. By requiring genocidal intent to be the only reasonable inference, the jurisprudence of the International Court of Justice risks transforming the Genocide Convention from an instrument of prevention into one of retrospective condemnation, recognising genocide only after the destruction of the protected group has become undeniable.
A more persuasive approach is the knowledge-based interpretation supported by aspects of Akayesu, under which genocidal intent may be inferred where decision-makers knowingly create conditions from which the destruction of a protected group is the foreseeable and inevitable consequence. Such an interpretation better reflects the drafting history of the Genocide Convention, which deliberately rejected a narrow "purpose" requirement in favour of the broader phrase ‘intent to destroy’, and aligns with the Convention's humanitarian object of preventing, rather than merely punishing, genocide.
International law should not remain paralyzed by an evidentiary threshold that is almost impossible to satisfy while atrocities are unfolding. A knowledge-based approach would preserve the exceptional nature of genocide while ensuring that its preventive promise remains meaningful in the face of contemporary patterns of mass destruction.
