But let's not be coy. The Palestinians have been waging a war of genocide on the Jews for more than 75 years. They are only capable of doing it in relatively small attacks on innocent children and unarmed adults and, of course, with their crude rockets. The attack on the kibbutzes on 10/7 is probably the most that they could ever pull off and of course, it was committed on innocent, mostly unarmed teenagers and young adults. Vicious, horrifying, and depraved, it's still about the most they could do.
On the other hand, the IDF is committing a "genocide" on Hamas and justly, so. It's more than clear that virulent, colonialist islamism will never tolerate a Jewish state in the Jewish homeland. It's the same with our grandfathers clearing out the last of the Nazis in Europe. Necessary for civilization to resume.
Conflating an entire occupied population of millions with a militant faction is the exact rhetorical erasure used to justify mass atrocities throughout history.
Characterizing 75 years of Palestinian history as a one-sided war on Jews completely ignores the historical reality of 1948: the violent displacement of 700,000 Palestinians, the destruction of over 500 villages, and decades of military occupation and disenfranchisement. Reducing millions of stateless civilians, children, and families to a monolith of "colonialist Islamism" ignores the fact that Palestinians are an indigenous population resisting expulsion and military rule.
Legally and morally, you cannot commit "genocide" on a political or militant organization. Genocide under the 1948 Convention applies strictly to national, ethnic, racial, or religious groups. When an operation destroys the entire material basis of life for an enclosed civilian population (flattening civilian infrastructure, engineering famine, and killing tens of thousands of women and children), claiming it is simply "clearing out Nazis" is not a legal defense. It is an explicit defense of collective punishment.
No, Arabs are not indigenous to Judea and Samaria. It's not the fault of the IDF that Hamas uses neighborhood children for shields and hospital basements for rocket batteries.
Denying the indigeneity of Palestinians is a textbook tactic of historical erasure used to legitimize displacement.
Regarding your second point, the "human shields" argument does not grant a military a blank check under international humanitarian law. Even if an adversary operates in densely populated urban areas, a state military is still bound by the principles of distinction and proportionality. You cannot legally raze entire residential blocks, cut off water and electricity to millions of civilians, and systematically dismantle the healthcare apparatus and then blanketly blame the opposing faction. Annihilating the conditions necessary to sustain civilian life is collective punishment.
"A public building can be a military objective if it is being used for a military function at the time of the attack — for example, as a command post, storage facility, or training site." -- International Humanitarian Law (aka Geneva Convention)
Further, it is a war crime to use civilians as human shields.
Your quotation of International Humanitarian Law is incomplete. You are citing the rule of distinction but omitting the binding rules of proportionality and precaution.
While a civilian structure loses its protected status if used for military purposes, this does not authorize unlimited destruction. Under customary international law, any attack on a dual-use structure must pass a strict test of proportionality. The anticipated military advantage cannot be outweighed by the expected incidental loss of civilian life. Leveling entire residential blocks or destroying major medical infrastructure to eliminate a limited military presence constitutes a disproportionate attack.
Second, the presence of human shields does not nullify the attacking force's legal obligations. If an opposing faction commits the war crime of using human shields, the attacking military is still legally bound to factor those civilians into its proportionality calculations. The laws of war do not operate on a waiver system.
Finally, calling the civilian death toll a "grotesque exaggeration" ignores the physical evidence documented by independent medical professionals. In October 2024, the New York Times published accounts corroborated by 65 American healthcare workers who volunteered in Gaza. Trauma surgeons documented a continuous stream of Palestinian children arriving with single, high-velocity sniper rounds directly to the head or chest. Dr. Feroze Sidhwa alone documented 13 separate cases of children shot in the head over two weeks. A military does not unintentionally put a precision sniper bullet into the skull of a toddler. When international surgeons uniformly report these exact wounds, you can no longer hide behind the defense of human shields or collateral crossfire.
You are conflating an ethnolinguistic identity with genetic and historical continuity.
Arguing that Palestinians are not indigenous because they are "Arab" relies on the historically illiterate assumption that the 7th century Islamic conquests entirely replaced the native population of the Levant. Modern historians, anthropologists, and extensive genetic studies (including DNA analysis comparing ancient Canaanite remains to modern populations) confirm that modern Palestinians are overwhelmingly descended from the continuous, pre-Islamic inhabitants of the land.
Over centuries, those indigenous populations adopted the Arabic language and culture. This was a process of Arabization, not a population replacement. Using a linguistic shift to erase the multi-millennial, continuous physical presence of a people on their land is not a "historical fact." It is the exact definition of historical erasure.
I can accept the DNA science, but the fact remains that some who identify today as Palestinian have genetic ties to neolithic farmers of the Levant (like many contemporary Jews), but adopted the language, culture, and religion of the Arab conqueror colonists. Do Palestinians see themselves as Arabic or as Israelites? Do they think they are genetically distinct from 1st millennial Jews? Or do Palestinians see themselves as worshippers of Baal who resisted the Hebrew kingdoms of Israel for 2,000 years and later converted to the Arabic-Muslim mandates?
"The picture is not, however, a simple story of identical genomes. Nebel’s 2001 study also found that Jews were slightly more closely related to groups in the northern Fertile Crescent—Kurds, Turks, and Armenians—than to their Arab neighbors, while Palestinians carried distinctive high-frequency J1 haplotypes reflecting migrations from the Arabian Peninsula." -- TTOI, 2/25/2026
You neglect that the Arab states surrounding the nascent state of Israel declared war and invaded and were then assisted and supported by the Arabs living there who now chose to call themselves Palestinians. You ignore that Azzam Pasha, the Secretary-General of this same Arab League declared that they should wage a war of extermination against the Jews. You ignore that the same Arab league urged the Arabs living in Israel to leave so that the Jews could more easily be destroyed. Now THAT sounds like a plan of genocide to me so, I guess you are right. Genocide was ordered in 1948 but it was ordered by the Arabs against the Jews! Funny how you got that mixed up.
You are relying on a fabricated historical narrative that was debunked by Israeli historians decades ago.
First, the claim that the Arab League urged Palestinians to leave their homes is a documented myth. When the Israeli government declassified its state and military archives in the 1980s, Israeli historians like Benny Morris reviewed the internal intelligence reports of the Haganah and the IDF. They found zero evidence of Arab broadcasts or orders telling Palestinians to evacuate. The archives confirmed that the mass exodus was primarily driven by direct military expulsions, such as Plan Dalet, and the terror induced by massacres like Deir Yassin.
Second, you are inverting the historical timeline to justify this displacement. The Arab state armies did not invade until May 15, 1948. By that date, Zionist militias had already violently displaced hundreds of thousands of Palestinian civilians and destroyed dozens of villages. The ethnic cleansing of the indigenous population was already fully underway months before the surrounding Arab armies crossed the borders.
Finally, pointing to the inflammatory rhetoric of Azzam Pasha does not retroactively justify the systematic expulsion of 700,000 civilians. A war crime committed against an indigenous population cannot be legally or morally erased by quoting the bellicose statements of a neighboring diplomat. The material reality of 1948 was the planned and executed removal of a civilian population to engineer a demographic majority.
“the experts have ruled” = "the science is settled"
For me, the ultimate test of definitions is Indonesia. Somewhere between 500,000 and 1,000,000 communists and other leftists were killed from 1966-1967. I studied the entire English-language historiography that was available, and if communists and leftists were considered an ethnic group, the killings would absolutely be considered genocide. BUT! Even a ridiculous genocide "scholar" like Michael Mann admits the difficulty of defining the mass murders of a million people this way, preferring the term "politicide" instead. That's because in a nation of thousands of ethnicities, no single group contained all the communists.
So my very first test for anyone who says that Gaza is a genocide is to ask them to explain how the deaths of one million Indonesians is not considered a genocide while the deaths of 20,000 civilians in Gaza somehow qualifies for the title. So far, not one self-styled "genocide scholar" on X has been able to explain it. Hardly anyone I ask has ever even heard about the mass killings in Indonesia. You would think the global left would talk about it more, but they do not, and that is because the whole thing started with communists killing people.
They don't want to talk about it because the left comes across as guilty and deserving, even if the response was disproportionate. Weird how that doesn't work with Hamas. I guess Suharto could get away with it because he wasn't Jewish?
We moved to Bali in 1973 and of course, the memory of the rebellion against the communists was still very fresh. They don't talk about it now, but we were told by the people who actually did it, that these happy island people who revere all life as part of their unique blend of Hinduism, Buddhism, & animism, killed every Chinese person and child they could find, associating them with communists. Most were shopkeepers and merchants. Wiped them off the island. They were killed with kitchen knives, kris daggers, scythes, and rice hoes. No explanation as to where the bodies went. Gruesome.
Cool story but the victims were overwhelmingly indigenous Balinese accused of belonging to or supporting the Indonesian Communist Party, along with people targeted through family, political, caste, or local rivalries.
Ethnic Chinese people did suffer persecution in Bali, with shops attacked and looted. Dozens were killed and many fled. Anti-Chinese sentiment was connected to the association of China with communism and to the fact that some Chinese Indonesians had connections with organizations accused of being communist. But the total number of Chinese killed throughout Indonesia was ~2000.
In the primary sources, it is very clear that Balinese killed Balinese, which is how Suharto did it. Mostly they used traditional swords. The Army of Indonesia would recruit the killers, who would remove the communists from their own families. Women were frequently spared, but they disappeared into the family and no longer had public lives. Anti-Chinese sentiment was always present but the close relationship between the Indonesian communist party and Mao was a more immediate concern. I looked into this question and while thousands of Chinese died, it was a tiny fraction of the whole.
The reason the 1965 to 1966 mass killings in Indonesia are categorized as politicide or crimes against humanity rather than genocide is strictly structural: the 1948 Genocide Convention explicitly excludes political groups from its protected categories (limiting protection to national, ethnical, racial, or religious groups). That is a known limitation of the treaty's negotiated scope, not an evidentiary contradiction. Palestinians in Gaza are recognized under international law as a distinct part of a protected national and ethnic group. Comparing the legal classification of an excluded political faction to a protected national group misunderstands why the Convention applies differently across historical contexts.
I love your work and your wife is a brilliant and talented soul. My issue is that you are doing the work for the people who need to prove the claim. This great writing can just be dismissed and, sadly, will be dismissed. We live in a post truth environment and as long as we are the ones explaining why this isn't a genocide, we have given the enemy exactly what they want: more time to stall and carry out their grift.
Gerald correctly highlights that 'genocide' is a precise legal term governed by Article II of the 1948 Genocide Convention, requiring proof of dolus specialis—the specific intent to destroy a group as such—rather than a synonym for tragic civilian casualties in high-intensity urban warfare. He is right to push back against substituting social media consensus for rigorous evidentiary standards.
However, issuing a definitive final verdict—whether affirmative or negative—pre-empts the very institutional process he cites. The International Court of Justice found South Africa's allegations plausible enough to warrant provisional measures and a full, multi-year trial. Because the standard of proof for intent remains one of the highest bars in international law, the determination belongs strictly to the ICJ's formal, adversarial fact-finding process, not to public commentators declaring the case closed from either side.
This is an important distinction, but the premise that we can simply rely on the formal institutional process assumes that international tribunals are permitted to operate neutrally without direct political subversion. Look at what happened when the International Criminal Court (ICC) followed its formal evidentiary process and issued arrest warrants for war crimes and starvation: the United States, led by Secretary of State Marco Rubio, responded by placing financial sanctions, asset freezes, and visa bans directly on sitting ICC judges and prosecutors (including ICC President Tomoko Akane), declaring an explicit goal to systematically dismantle the court. Commentators demand rigorous adherence to international legal standards, but the moment an international judicial body applies those exact standards to Western allies, political power moves to sanction the judges and delegitimize the institution. The resistance to these findings is fundamentally political, not a principled defense of legal procedure.
You make a compelling point about legal realism: international law does not exist in a vacuum, and power politics—including sanctions against ICC officials—frequently attempts to subvert judicial independence. Ignoring that structural vulnerability would be naive.
However, political resistance to a court's findings does not invalidate the necessity of the legal standard itself. The fact that powerful states try to pressure or delegitimise tribunals like the ICC or ICJ actually proves the threat that formal, adversarial fact-finding poses to political power.
If we abandon the institutional process because it is politically targeted, we are left with nothing but power politics, raw geopolitical leverage, and high-decibel social media consensus as our arbiters of international law. The system is structurally flawed and under political siege, but rigourous evidentiary standards remain our only defence against sheer power defining reality.
We are in agreement that the evidentiary standards must not be abandoned. My critique is not of the institutional process itself, but of how pundits use "let the courts decide" as a cynical stalling tactic while their governments actively sabotage those exact courts. The ICC and ICJ did apply rigorous evidentiary standards, which resulted in arrest warrants for engineered starvation and a finding of plausible risk under the Genocide Convention.
We cannot pretend the institutional process is functioning neutrally when the states demanding we respect the process are simultaneously sanctioning the judges who execute it. We must uphold the standard, but we also have to call out when the demand for "process" is being weaponized to shield allies from accountability.
I appreciate the extent you went through to explain the history, definition and intent behind the word genocide, the recognition of which is important for a true understanding of our past and, sadly, future atrocities. It's a brave and bold discussion to have online. As an aside, would you add Armenia to that list of genocides?
I can only speak for myself when I say that my difficulty lies in accepting any rational for killing civilians, however it is defined. "A just war" is something I can't wrap my head around, even though I understand the need to defend one's self or country. IMO a crime against humanity seems equally horrible as a genocide, even if the intent is more specifically defined.
You should add Armenia because the original framework that Lemkin was coming up with was because of Armenia and not necessarily the Holocaust. It wasn't until later that the word "genocide" itself was coined by him, but his original framework was in relation to Armenia.
It is important to note that in the law of armed conflict and IHL there is an expectation of innocent civilians being killed. That's the entire premise of what the proportionality assessment requires us to understand in how we mitigate, but not eliminate, civilian harm.
You have just expressed why war is evil and ultimate consideration should be taken before starting one.
I wish Hamas fighters stayed home
I wish martyrdom wasn’t the strategy Hamas used.
Sadly Hamas knows the cost and has admitted openly that the it was a worthwhile endeavor.
It’s not on the defender to stand down to prevent harm.
It’s also not on the defender to not exact a cost that should give its enemies that are surrounding them pause.
Any other logic would validate Hamas human shield strategy. Israel didn’t go full out, or even a quarter. Israel put its own soldiers at risk, Israel telegraphed their strikes.
I agree with you. But it was Hamas that set the cost. Not Israel. This forever war the Arabs want must end. Anyone who chants “free Palestine” post October 7 is encouraging the violence to continue.
They are wrong, though. They do not assess genocidal intent, they misstate the law and take statements out of context as the author points out here. They're historians, not legal experts, so it would make sense that they themselves don't know how to assess this.
Raz Segal also made his accusation on October 13, 2023 and made his without actually assessing the required intent or understanding it in the context of the only reasonable inference test.
Omer Bartov doesn't actually assess intent, he assumes it because of the "Amalek" statement and "human animals" one. Which, as noted here, isn to genocidal when placed in context (which is required to do). He also makes a nonsensical argument to Hiroshima and does not assess the issue of Hamas' conduct in urban war.
So, they should be discarded as unserious accusations that lack the legal analysis required.
Anyone who wants to learn the truth about all the grossly misleading quotes from Israeli leaders that all the “antizionists, not antisemites” circulate to claim genocidal intentions, should read this; it completely debunks all the hoaxes:
- Yair Rosenberg, What Did Top Israeli War Officials Really Say About Gaza?, Journalists and jurists point to damning quotes from Israel’s war cabinet as evidence of genocidal intent. But the citations are not what they seem, 21/01/2024
These are the quotes upon which the "genocide" hoax is based. In all cases and fake reports, these and only these are used. Do your homework next time. Try again.
Fox-Panderer-Posner or Israeli-American historian, and genocide authority Bartov - The Dean's Professor of Holocaust and Genocide Studies at Brown University, where he's taught for three decades. Segal is similarly unimpressive.
Dismissing scholars like Omer Bartov because they are historians rather than jurists misapprehends how courts establish genocidal intent. International criminal tribunals routinely rely on expert historical and demographic testimony to evaluate the context of state rhetoric and military conduct. Furthermore, the analysis of intent does not rely solely on disputed phrases in isolation. Under ICJ jurisprudence (such as Bosnia and Croatia), when direct orders are classified, courts look at whether intent is inferred from a comprehensive pattern of conduct. When total siege tactics, the systematic destruction of water, energy, and medical infrastructure, and mass displacement mirror the dehumanizing rhetoric of senior officials, it provides the precise factual foundation required to evaluate dolus specialis.
This comes from the only reasonable inference test. See: Bosnia v. Serbia (2007) para. 373: "“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 to the existence of such intent.”
We can even look towards ICTY with Tolimir which says the same thing.
This requires that it be the only reasonable inference based on the totality of the evidence, and that requires us understand the full totality of the facts including the assessment of the other belligerent party.
Historians like Bartov don't tell you this, nor do they apply this. If they do not do this, they should be written off. Bartov misapplies statements (taken out of context) and uses that to infer intent. That's not how the law works.
Also, total siege tactics are legal, so that's not a very good argument for an inference to intent. But there is a good argument to make on destruction of water. Yet the energy and medical infrastructure is not a good argument unless you can prove that the only reasonable inference there is genocide, which again, requires no other alternative explanation. We do know that diversion of petroleum has existed (another reasonable inference), and we know that Hamas has fought from and weaponized hospitals and medical infrastructure (GC IV 19 applies and is thus another reasonable inference). Probably important to point out that the "dehumanizing rhetoric" is almost always applicable directly to talking about Hamas, and not Palestinians as a whole. Palestinians are protected, Hamas is not.
Without raising these issues you do not assess the analysis and historians never apply this. Bartov does not apply the legal analysis.
So, yes, we should discard those who do not apply the legal analysis that is required from the jurisprudence. That's kind of the point.
If you want to make an accusation of genocide, you should actually utilize the jurisprudence as it is required. Not misstating the law or not applying it at all.
Historians are not legal scholars, and he is not qualified to make a legal determination. This is demonstrated repeatedly by his lack of understanding of the analysis.
You are misstating the laws of armed conflict. Total siege tactics that deprive a civilian population of goods indispensable to its survival are not legal. Under customary international humanitarian law and the Rome Statute, intentionally using starvation of civilians as a method of warfare is a war crime. Executing a complete siege that cuts off water, food, and electricity to two million civilians cannot be defended as a standard military operation.
Your application of the only reasonable inference test also ignores the total scale of the destruction. It is true that Hamas operates in civilian areas, but the complete obliteration of Gaza's healthcare system, universities, and agricultural sectors goes far beyond neutralizing militant infrastructure.
Claiming that dehumanizing rhetoric only applies to Hamas ignores the public record. When President Isaac Herzog stated that an entire nation out there is responsible, he explicitly eliminated the distinction between militant and civilian. Coupling this systematic material destruction with statements from top leadership eliminating civilian distinction makes the inference of genocidal intent not just reasonable. It reflects the reality of state policy.
This is super interesting because you are confusing multiple pieces of international law. You also seem to be making conclusive statements absent legal fact and evidence.
Let's start in reverse order, when President Herzog said "an entire nation is responsible, it is not true that they could not have done something" is not a dehumanizing statement in context of what was said in the totality of the press conference. It also explicitly stated him calling for innocent Palestinian civilians to be protected from the conflict. The sentence you are referring to was him discussing the fact (which is known) that civilians participated in the atrocities on October 7, we also know that civilians brutalized Israeli civilians when they were taken into Gaza as hostages. So, if he was in a position to act as a person who could set state policy, in the context of what he was talking about, you would not find it to be genocidal.
But we also need to discuss the fact that he, as the President of the State of Israel, does not actually set state policy. He does not dictate military strategy. He does not oversee the military and has no authority to do so. Citing to him is a bit of a misdirect and red herring. Unless you want to state that there is a path to incitement to genocide, which there isn't because of the context of the statement.
Next, the only reasonable inference test. The scale of destruction when assessing the conduct of both belligerent parties raises another reasonable inference. You are trying to make an assumption that the scale of destruction of infrastructure is evidence of genocidal intent, for that to be true it would have to indicate that it threatens the very existence of the Palestinian civilians in Gaza. It doesn't. To understand this requires us to understand what "in part" means in the Genocide Convention's Article II. This can be found in the ICTY's Krstic Appeals Chamber decision which tells us that you must demonstrate that the intent and act destroys such a substantial portion of the group that it threatens the groups viability to continue to exist within the area of control. In the ICTY's Sikirica Trial Chamber decision they stipulate that about 3% destruction is not indicative of substantial destruction to constitute the in part requirement. Gaza's total population killed is about 3%. So we can draw a parallel based on the existing jurisprudence to find that the in part requirement for both mens rea and actus reus is missing. This is important in understanding the only reasonable inference test because it errs against genocidal mens rea. But also, we must understand if there is a reasonable explanation other than genocide that exists. Hamas' systemic weaponization of civilian and humanitarian infrastructure is well documented, as is the fact that they have fought from homes, mosques, and schools. Gaza is also one of the most dense urban areas in the world. So coupling these two things together raises another reasonable inference. Now, that reasonable inference could still be a demonstration of illegal conduct by Israel, but that does not mean it is genocide. However, we also know that the Geneva Conventions have explicit legal guidelines on this under GCIV 19 & 28, and API 51(7) which expressly do not immunize such areas from harm if civilians are present and a combatant party is fighting from them. Which errs against illegal conduct by Israel, and instead that Hamas has committed gross violations of LOAC and IHL.
What this comes down to is that the standard for the only reasonable inference test is effectively beyond a reasonable doubt. If there is a demonstration of doubt, then the only reasonable inference test cannot sustain an inference to genocidal mens rea, and thus cannot establish the elements of the crime of genocide so genocide is not a legally available explanation.
Basically, what you are saying is resting on the assumption that Hamas did not operate in a manner in which we know that they have operated – and the available evidence does support. (See, for example: https://time.com/6693896/hamas-tunnels-gaza-home-ruin/).
Finally, you're confusing two separate issues with siege (which is legal as long as there's a reasonable means of escape, which when there was a total siege early in the war, the Israelis gave a one month window for escape) and diversion of aid for the purpose of material benefit. (See: GCIV 23). When a belligerent diverts aid to materially benefit from the aid, the aid can be ended.
You can actually critique this as a bad strategy and oppose it without obscuring the fact that we know that Hamas diverted aid. This is where we can say that a better strategy would've been to destroy the economic viability of the aid by flooding Gaza with food and medicine. This is a hindsight argument, one I agree with, but not relevant to the legality of the conduct itself.
When you say "intentionally using starvation as a method of war is a war crime." This is totally true! But again, this requires assessing the possible legal explanations for ending aid. Things you can reasonably oppose. However, that would then cause doubt of the mens rea requirement (this is a specific intent crime).
So, no, I am not misstating or misapplying the law. I'm raising relevant issues that a tribunal would need to assess and if they are found to be minimally credible, they would defeat the claims on the standard of the burden of proof at both the ICC and the ICJ. And an important point to note: The ICC has expressly rejected the warrants requests for the crime against humanity of extermination (like genocide but without the mens rea element) for Netanyahu and Gallant. This was at the reasonable grounds standard in which the PTC I takes everything that the prosecutor says as objectively true and weighs that to if that demonstrates that the elements could be present. That's the lowest standard in the law. So if you cannot get extermination at reasonable grounds, you cannot get genocide on fully conclusive, the highest burden of proof.
You are conceding the standard and then declining to apply it to the record. Let me take your points in order.
On Herzog, fine. He is a ceremonial president and I would not build a case on him. The ICJ still quoted him in paragraph 52 of its 26 January 2024 order, alongside two ministers who did set policy: Gallant, who on October 9 announced a complete siege with no electricity, no food, no fuel, while calling the people on the other side "human animals," and Katz, the Energy Minister, who on October 13 wrote that "all the civilian population in Gaza" was ordered to leave and would "not receive a drop of water or a single battery until they leave the world." That is the Defense Minister and the Energy Minister, the two people who controlled the siege, describing it. And Katz's statement is addressed to the civilian population by name, not to Hamas. So much for the rhetoric only ever being about combatants.
That brings up the timeline problem with your GCIV 23 argument. The total siege was declared on October 9. The first aid trucks did not enter until October 21. You cannot divert aid that has not entered. The decision to cut water, food, and fuel to two million people predates any aid to divert, so diversion cannot be the alternative inference for it. And the ICC Pre-Trial Chamber looked at exactly this defense. It found reasonable grounds to believe there was "no clear military need or other justification" for the restrictions, that Netanyahu and Gallant "intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival," and that this "created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza." That last phrase is Article II(c) of the Genocide Convention nearly verbatim.
On siege law, there is no "reasonable means of escape" exception. AP I Article 54 and customary rule 53 prohibit starving civilians, full stop. And there was no escape. Rafah was closed. Moving people from northern Gaza to southern Gaza inside a sealed strip that was also being bombed is relocation within the siege, not escape from it.
Your Krstić argument cuts against you. Srebrenica involved 7,000 to 8,000 men out of roughly 40,000 in the enclave, out of about 1.4 million Bosnian Muslims. Well under one percent of the group. The Appeals Chamber held that numeric size is "the necessary and important starting point, though not in all cases the ending point," and weighed the emblematic character of the part and the perpetrator's area of control. It also held the intent element is satisfied where the perpetrator "intended to destroy at least a substantial part." Intended. Genocide does not require the destruction to be completed, so a death toll of three percent is not a legal ceiling on anything. Sikirica was a 2001 trial-level Rule 98bis ruling about detainees at one camp, decided before Krstić Appeals. Nobody treats it as a numeric threshold. And three percent is a floor: the Health Ministry count is over 72,000, the Lancet Global Health household survey put violent deaths at 75,200 by January 2025 plus 16,300 non-violent excess deaths, and thousands remain under rubble. II(c) does not count bodies anyway. It counts conditions.
On extermination, read what the Chamber actually said: it "could not determine that all elements" were met on the prosecutor's record, which closed on May 20, 2024, and it charged murder instead. That is an evidentiary limit on a seven-month record, not a merits rejection. The IPC Famine Review Committee confirmed famine in Gaza Governorate on August 22, 2025, fifteen months after that record closed. And the ICJ does not need the ICC. State responsibility and individual liability are different cases on different records.
Finally, a Time article about tunnels under houses does not supply an alternative inference for the totality. The alternative has to explain the whole pattern, including a siege ordered before there was aid to divert and the ministers who ran it stating why. The UN Commission of Inquiry applied the Bosnia only reasonable inference standard in September 2025 and found four of the five Article II acts and incitement by Herzog, Netanyahu, and Gallant. You can disagree with the conclusion. You cannot keep saying the legal analysis has not been done. It has. You do not like the result.
Super interesting, because this is still a bit incorrect on your application. Gallant's statement specifically referred to Hamas when he said "we are fighting human animals and we will act accordingly."
Now, I do think you raise an appropriate point on Katz, but the Katz statement is still inapplicable because the reference was for Gaza City, which was given a month to evacuate. The siege itself was specifically for Gaza City.
The issue related to the charge of aid was not related to the immediate first month of the war. It was related to the time extending until April 2024. This is important in the timeline that you refer to. This all hinges on the necessity of the aid, and what the facts are surrounding the aid – including diversion. We knew that Hamas was diverting aid early on in the war, this was done as a means to (1) support their efforts; (2) tax it; and (3) to store it for their future needs.
As an important reminder: The PTC I only views the evidence as portrayed by the prosecutor in light most favorable to the prosecutor. So they do not assess any possible reasonable alternative explanation. They actually cannot assess any reasonable military necessity because they do not have that as a means of rebut. That's the stage of the process they were at, at the time. So to raise that is nonsensical on its face because it doesn't actually address the standard at the time of granting warrants.
Probably important to also point out that Rafah was not closed. Rafah was open for evacuation *if* people could pay Egypt $5,000 as a bribe. We know this as factually true.
My Krstić argument is important to place into the context of Srebrenica. They did not assess this as a weight to the totality of the Bosnian Muslim population, they measured it only to the Bosnian Muslim population of Srebrenica which accounted for about 30% destruction, all males. At the same time the Chamber discusses the necessity of males for procreation. The portion killed in Srebrenica being all males, in a protected zone, gave them the ability to establish the inference. This is incredibly important and trying to weigh this to the whole of the Bosnian Muslim population is not what the ICTY chamber did.
On note about the ICC chamber, I suspect this would still be the case based on the actions and words of the now former-ICC prosecutor.
I also need not raise a totality of evidence to demonstrate a fundamental issue with the discussion with the law in Gaza. The tunnel infrastructure under civilian homes is a notable piece of evidence that will aid in inferring against genocidal intent. Since genocide requires a fully conclusive standard of proof, this necessarily raises doubt. This need not be the only piece of information demonstrating this fact. Israel likely would raise much more in their written statements and oral arguments. What's important is to note that Article II(c) relies on the *deliberate* infliction of conditions calculated to bring about the destruction of the group (physical destruction). You notably ignored the Sikirica chamber's statements, which is extremely relevant here. About 3% does not constitute such a substantial portion of the group to constitute "in part destruction."
I need only raise enough to cause doubt, and in an online debate on Substack, need not be a demonstration of the full breadth of evidence. I need only raise the issues to demonstrate that other reasonable inferences exist. And if other reasonable inferences exist on the totality of the evidence, then it cannot establish genocidal intent.
What you appear to be doing is ignoring the facts and totality of the evidence to try and twist the evidence to portray what you want the evidence to conclude. Unfortunately for all of us who are lawyers, that's not how the law works in our cases, it depends on what the law actually says.
It is not me that does not like the result, nor is it me taking statements completely out of context (thank you for conceding this with Herzog, by the way). It is you that does not like the result of the law itself.
It is on the proponent to prove their case to the burden of proof of fully conclusive, not me as the defense to disprove the claim. I need only raise enough doubt to make it that the standard is not met. If the standard is not met, it cannot be genocide.
And it is important to note that the substantiality portion is incredibly relevant and your misapplication of the full standard there would defeat it in itself.
Anyways, I appreciate the respectful conversation. I'm off to finish making dinner and this brief to the ICC on behalf of Palestinian victims.
On the ICC, you have now made two arguments that cannot both be true. Last comment, the Chamber's decision not to include extermination was decisive: if you cannot get extermination at reasonable grounds, you cannot get genocide at fully conclusive. This comment, the PTC "only views the evidence as portrayed by the prosecutor," "cannot assess any reasonable military necessity," and citing it is "nonsensical on its face." Pick one. If the Chamber's findings are one-sided rubber stamps, your extermination point evaporates with mine. If they carry weight, then it found no clear military need or other justification under IHL for the aid restrictions (https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges), which is an assessment of exactly the thing you say it cannot assess. And the warrant covers October 8, 2023 through at least May 20, 2024, so "the charge was not related to the immediate first month" is also wrong. The first month is inside the charged period.
On Krstić, you have just conceded the argument. You say the Chamber measured destruction against the Bosnian Muslims of Srebrenica, the community within the perpetrator's area of control, not the whole group. Exactly. Substantiality attaches to the part targeted, not to a percentage killed. The part in Srebrenica was about 40,000 people; the part here is the 2.2 million Palestinians of Gaza, the largest concentration of Palestinians under a single authority anywhere on earth. If that part is substantial, and it is, the question becomes acts and intent, and the II(c) conditions, the siege, the famine the IPC Famine Review Committee confirmed on August 22, 2025 (https://www.who.int/news/item/22-08-2025-famine-confirmed-for-first-time-in-gaza), the destruction of most of the housing stock and the displacement of ninety percent of the population, were imposed on all of that part, not three percent of it. On your own Srebrenica math, roughly twenty percent of the enclave's population killed was genocide while less than one percent of the group died. The kill ratio is not the test in either direction, which is also the answer on Sikirica: the two to three percent figure there described the share of Prijedor's Muslims detained at one camp, as evidence of what was targeted, in a Rule 98bis ruling three years before the Krstić Appeals Chamber set the multi-factor standard (https://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.htm). It is not a threshold, and no chamber since has used it as one.
You are right that a defense needs only doubt. But doubt has to be built out of true facts. A 24-hour order described as a month, a strip-wide siege described as Gaza City, a closed crossing described as open, and a charged period that includes the month you excluded do not raise reasonable alternative inferences. They show the alternative story requires amending the record to work.
Good luck with the brief. The victims will be well served if it holds the record to the standard you have been demanding from everyone else.
Raz Seagal quotes Gallant's statement from Oct 9th. He does not mention at all that on that very same day the IDF clarified he was referring to Hamas fighters not civilians. Seems pretty weak evidence. Also sieges have been enacted in other wars without them being deemed to be genocide and this siege was reversed shortly after it was enacted further indicating this was not genocidal as if it was it would not have been reversed.
Raz Segal said rhetoric from Pres Joe Biden referring to Oct 7th as "an act of sheer evil" was dehumanizing language.
His other evidence of genocide is Channel 14 where people have called to turn Gaza into Dresden or to flatten it... stuff that people on social media say routinely about Israel... what he does not mention is people saying stuff like this who are not part of the chain of command and do not set policy is not evidence of genocide.
Omer Bartov is similarly pathetic. He relies on the same contested statements to find intent, a ridiculously low standard never upheld in any other genocide case. Then he looks at the conduct of the war, all types of conduct covered in genocide cases like Croatia v Serbia (not genocide) and he insists on explaining it via genocide and refusing any other inference including a brutal urban war against an entrenched militant group that does not fight according to Int'l Law.
None of them can adequately explain why it is a genocide. Neither can you.
Arguing that the siege was merely a temporary measure directed at Hamas ignores the operational reality documented on the ground over the past two years. The ongoing destruction of civilian life support systems (water treatment plants, bakeries, sanitation, and hospitals) combined with severe, documented restrictions on basic humanitarian aid directly addresses Article II(c) of the Genocide Convention: deliberately inflicting conditions of life calculated to bring about physical destruction. When conduct predictably results in widespread famine and the collapse of essential survival infrastructure for an entire population, it exceeds legitimate counter-insurgency and forms compelling evidence of state-directed collective destruction.
Objectively the population has not had this mass die off that you just implied should occur. Also IPC Phase 5 would have resulted in hundreds of deaths per day from lack of nutrition which never happened and no one has claimed it did.
So even if you mistakenly believed your propositions a year or two years ago and thought there would be some mass die off, we now have direct evidence that your propositions are flawed.
You are fundamentally misreading Article II(c) of the Genocide Convention. The law does not require a completed "mass die-off" to trigger; it criminalizes the act of "deliberately inflicting conditions of life calculated to bring about its physical destruction." Systematically destroying water grids, sanitation, bakeries, and hospitals meets that exact definition. Furthermore, tens of thousands of civilians have already been killed by high yield munitions, thousands more are unaccounted for under rubble, and the destruction of the medical infrastructure has predictable, devastating consequences.
Minimizing this catastrophe because the death toll hasn't reached a specific arbitrary threshold does not erase the criminality of destroying the very infrastructure required to keep a population alive.
You quoted the text but skipped the operative word. "Calculated to bring about its physical destruction." Calculated is a purpose requirement, not a consequences requirement. It tracks the chapeau's specific intent: the conditions must be inflicted as the chosen means of destroying the group as such.
Everything in your comment establishes foreseeability, not purpose. You say the destruction has "predictable, devastating consequences." Predictable is the wrong category. Foreseeing that death will follow from an act is knowledge. II(c) requires that destruction of the group be the object of the act. A belligerent who wrecks infrastructure in urban combat, even recklessly or callously, foresees death without it being calculated to destroy the group. The Convention draws that line deliberately, because otherwise every siege and bombing campaign in history is genocide by definition.
That is why the ICJ set the bar where it did. In Bosnia and again in Croatia, the Court held that when intent is inferred from a pattern of conduct, genocidal intent must be the only reasonable inference available. Not a plausible one. The only one. So the question is not whether the destruction is terrible or whether the deaths are foreseeable. Both can be granted. The question is whether an alternative reasonable explanation exists.
It does, and your own framing supplies it. A party calculating the physical destruction of a population does not simultaneously facilitate the aid required to keep that population alive. That is not a mitigating detail. It is direct evidence that destruction is not the object, which means genocidal intent is not the only reasonable inference, which means II(c) is not satisfied on your own account of the facts.
Your argument rests on separating conduct from explicit purpose, but the legal record connects both.
First, on the distinction between purpose and foreseeability: you argue that intent cannot be inferred because alternative military explanations exist. However, international courts do not evaluate physical conduct in a vacuum when senior officials state the purpose on the record. When Finance Minister Bezalel Smotrich publicly states that starving two million people might be "justified and moral," and National Security Minister Itamar Ben-Gvir repeatedly calls to halt all aid and push for population transfer, they are articulating the exact purpose behind the policy. When ministers with control over state resources, borders, and enforcement explicitly state the objective, treating the resulting deprivation as an unintended consequence of urban combat falls apart.
Second, your claim that Israel "facilitated aid" contradicts the factual findings of every major international body on the ground. The ICC issued arrest warrants specifically for the war crime of starvation as a method of warfare and crimes against humanity. Letting an inadequate trickle of aid through under immense international pressure, while systematically destroying local water systems, agriculture, and bakeries, is not facilitation. It is the calculated regulation of subsistence.
Third, the "only reasonable inference" standard from Bosnia and Croatia applies when intent must be deduced solely from ambiguous military operations. When severe physical destruction of life-sustaining infrastructure directly aligns with the stated aims of senior government leaders, the threshold for dolus specialis under Article II(c) is met. You cannot use the presence of armed combatants to grant total legal immunity to a state policy that systematically destroys the material conditions necessary for a civilian population to survive.
I posted the following on Facebook. Zionist chatbots and hasbaroids swarmed with so many comments that willfully ignored the short clear definition of genocide from the convention which I had posted.
apparently attempting to redefine what genocide is is very important to the Zionist project.
Hamas' charter is a declaration of genocidal intent against Israel and Jews. And they act upon it, stating their intent to commit October 7 ten thousand times. Has Hamas been charged with genocide?
You are using a false equivalence to excuse collective punishment. The atrocities committed by Hamas on October 7 were horrific, and the ICC Prosecutor has applied for arrest warrants against top Hamas leaders for war crimes and crimes against humanity, including extermination and hostage-taking. No serious international legal scholar is defending Hamas.
However, the laws of armed conflict operate on an absolute prohibition against collective punishment. The criminality of a militant faction does not grant a state military the legal right to engineer a famine, dismantle the medical grid, and inflict mass civilian casualties on millions of stateless people.
You cannot point to Hamas's rhetoric to legally or morally justify the systematic physical destruction of the Palestinian civilian population in Gaza. International humanitarian law is not a reciprocal waiver system.
"I think that 10,000 is genocide," said Charny. "If that's not genocide, what is? You have 10,000 unarmed civilians of religion who were murdered by adherents of religion Y. What is that? Political murder? I think that's genocide."
-Prof. Israel Charney, director of Israel's Institute on the Holocaust and Genocide
Mr. Posner provides a thorough reading of black letter international law, but his conclusion relies on a flawed compartmentalization of the evidence. He treats the explicit rhetoric of top officials, the systematic dismantling of life sustaining infrastructure, and the mass civilian casualty rates as isolated data points rather than a cohesive operational pattern.
Posner argues that statements ordering a complete siege are mere wartime rhetoric directed at Hamas. In international criminal jurisprudence, when the rhetoric of senior leadership precedes and exactly mirrors the operational reality on the ground (such as the engineered collapse of the healthcare system and widespread starvation), treating those statements as hyperbole is analytically weak. It forms direct evidence of state policy.
He also leans on a percentage fallacy. Arguing that a 3.4 percent death toll over two years disproves genocidal intent by comparing it to Rwanda ignores established precedent. The ICJ ruling on Srebrenica confirmed that destroying a localized part of a group meets the legal threshold.
Posner correctly notes that military necessity is a defense against inferring genocidal intent. But when siege tactics deliberately withhold the basic prerequisites for biological survival for the entire civilian population, the action ceases to function strictly as a counter insurgency operation. You cannot artificially separate the war crime of engineered starvation from the stated intent of the leaders who ordered it.
Your legal rigor in your argument is admirable, but there are a few things that your rigorous talent should not permit. You move from "no competent tribunal has ruled that Gaza meets the Article II threshold"-which is factually accurate, to "Gaza does not meet the test", which is a different claim.
The first is a statement about the current state of judicial process. The second is a substantive determination that only a tribunal has the standing to make. You name the ICJ timeline (South Africa's Reply November 2027, Israel's Rejoinder May 2029), you acknowledge the tribunal has not ruled and will not for years and then you present your own analysis as if it substitutes for the tribunal ruling you say hasn't happened. That is a real structural error. When you write "Gaza does not meet the test," you are stating a personal legal conclusion in the register of an adjudicated finding. Under your own stated standard, that determination requires "a competent tribunal that has weighed adversarial evidence, with a defense in the room, and returned that verdict." No such verdict exists. Your own article says so. Therefore, your argument should be "The current legal threshold as most rigorously applied would make a genocide finding in Gaza difficult at this time, and the tribunal that will eventually rule has not yet done so." That is defensible. The version you actually deliver, that "Gaza does not meet the test" is not. You have committed the epistemic move you accused your neighbor of. Your neighbor said "everybody knows" and cited nothing. You say "the test is not met" and cite a tribunal that has not ruled.
Let me address some points - In my articles, I have documented multiple statements at ministerial and prime-ministerial level that go beyond wartime rhetoric. Smotrich's Greater Israel announcement naming specific territories including "all of Palestine", Netanyahu's UNGA address describing continued operations to "the next stronghold" after Gaza City, Danon's UN statement "We have rights to the land. It's not occupied land. This is our land." about the West Bank, Ben-Gvir's video from inside the UNRWA Jerusalem office he had just seized, the 20 August 2026 settlement construction announcement for 1,200 homes in the E1 area, framed by the government itself as intended to "end any chance of a Palestinian state." These are not rhetorical statements about Hamas, they are policy statements about territory and population, made by officials with the authority to direct policy, translated into operational orders.
In regards to 'pattern of conduct where destruction is the only reasonable inference surviving" and your alternative explanation "a brutal war against an armed enemy embedded in a civilian population", - on 6 July 2026, Hamas formally dissolved its Gaza government and transferred civil administration to a UN-backed technocratic body. Israeli strikes continued at the same tempo through the weeks that followed. If the armed enemy formally dissolves its governmental structure and the operation continues at the same tempo, the alternative explanation-that this is a war against an armed enemy-requires further explanation. The second is the operational continuation under formal ceasefire. You cite the October 2025 ceasefire as evidence against genocide. Under that formal ceasefire, one child has been killed per day on average per Haaretz, territorial control has expanded from 53% to 64.9%, Netanyahu has publicly directed further expansion to 70%, and 1,200 new settlement homes have been announced in territory nominally under Palestinian jurisdiction. The alternative explanation "brutal war that has ended" does not fit the operational record of the ceasefire.
"A competent tribunal that has weighed adversarial evidence." You are correct, this has not happened and that it will not happen soon, what you do not name is what will have happened to the population and the territory by the time it does happen. By the time the tribunal rules, the situation being adjudicated will have been overwritten. Whatever verdict comes will not reverse the reconstruction, will not return the population to its former condition, and will not undo the territorial expansion. The tribunal's ruling will be historically significant. It will not be structurally corrective.
And I have to say it, "Genocide for Dummies" is a rhetorical framing. It positions you as the informed expert and anyone using the word without your legal training as ignorant. That framing is not a legal argument, it is a persuasive move that arrives before the argument begins. Rigorous legal analysis does not require condescending to those who reach different conclusions. The title tells me how you want the reader to arrive at your conclusions - not just as informed but as un-embarrassed before the reasoning is laid out. Your article does something structurally problematic while sounding rigorous and I intend to document the architecture that makes this kind of argument possible.
But let's not be coy. The Palestinians have been waging a war of genocide on the Jews for more than 75 years. They are only capable of doing it in relatively small attacks on innocent children and unarmed adults and, of course, with their crude rockets. The attack on the kibbutzes on 10/7 is probably the most that they could ever pull off and of course, it was committed on innocent, mostly unarmed teenagers and young adults. Vicious, horrifying, and depraved, it's still about the most they could do.
On the other hand, the IDF is committing a "genocide" on Hamas and justly, so. It's more than clear that virulent, colonialist islamism will never tolerate a Jewish state in the Jewish homeland. It's the same with our grandfathers clearing out the last of the Nazis in Europe. Necessary for civilization to resume.
Posner should go on Rogan, or something similar to discuss this. Maybe Walk-Ins Welcome with Bridget Phetasy.
Conflating an entire occupied population of millions with a militant faction is the exact rhetorical erasure used to justify mass atrocities throughout history.
Characterizing 75 years of Palestinian history as a one-sided war on Jews completely ignores the historical reality of 1948: the violent displacement of 700,000 Palestinians, the destruction of over 500 villages, and decades of military occupation and disenfranchisement. Reducing millions of stateless civilians, children, and families to a monolith of "colonialist Islamism" ignores the fact that Palestinians are an indigenous population resisting expulsion and military rule.
Legally and morally, you cannot commit "genocide" on a political or militant organization. Genocide under the 1948 Convention applies strictly to national, ethnic, racial, or religious groups. When an operation destroys the entire material basis of life for an enclosed civilian population (flattening civilian infrastructure, engineering famine, and killing tens of thousands of women and children), claiming it is simply "clearing out Nazis" is not a legal defense. It is an explicit defense of collective punishment.
No, Arabs are not indigenous to Judea and Samaria. It's not the fault of the IDF that Hamas uses neighborhood children for shields and hospital basements for rocket batteries.
Denying the indigeneity of Palestinians is a textbook tactic of historical erasure used to legitimize displacement.
Regarding your second point, the "human shields" argument does not grant a military a blank check under international humanitarian law. Even if an adversary operates in densely populated urban areas, a state military is still bound by the principles of distinction and proportionality. You cannot legally raze entire residential blocks, cut off water and electricity to millions of civilians, and systematically dismantle the healthcare apparatus and then blanketly blame the opposing faction. Annihilating the conditions necessary to sustain civilian life is collective punishment.
"A public building can be a military objective if it is being used for a military function at the time of the attack — for example, as a command post, storage facility, or training site." -- International Humanitarian Law (aka Geneva Convention)
Further, it is a war crime to use civilians as human shields.
Your grotesque exaggerations are not helpful.
Your quotation of International Humanitarian Law is incomplete. You are citing the rule of distinction but omitting the binding rules of proportionality and precaution.
While a civilian structure loses its protected status if used for military purposes, this does not authorize unlimited destruction. Under customary international law, any attack on a dual-use structure must pass a strict test of proportionality. The anticipated military advantage cannot be outweighed by the expected incidental loss of civilian life. Leveling entire residential blocks or destroying major medical infrastructure to eliminate a limited military presence constitutes a disproportionate attack.
Second, the presence of human shields does not nullify the attacking force's legal obligations. If an opposing faction commits the war crime of using human shields, the attacking military is still legally bound to factor those civilians into its proportionality calculations. The laws of war do not operate on a waiver system.
Finally, calling the civilian death toll a "grotesque exaggeration" ignores the physical evidence documented by independent medical professionals. In October 2024, the New York Times published accounts corroborated by 65 American healthcare workers who volunteered in Gaza. Trauma surgeons documented a continuous stream of Palestinian children arriving with single, high-velocity sniper rounds directly to the head or chest. Dr. Feroze Sidhwa alone documented 13 separate cases of children shot in the head over two weeks. A military does not unintentionally put a precision sniper bullet into the skull of a toddler. When international surgeons uniformly report these exact wounds, you can no longer hide behind the defense of human shields or collateral crossfire.
This discussion about civilian infrastructure is all hindsight conjecture.
The discussion about sniper wounds on children is another matter. Can they tell if these are IDF or Hamas bullets?
Stating historical fact is not historical erasure. What kind of twisted logic is that?
You are conflating an ethnolinguistic identity with genetic and historical continuity.
Arguing that Palestinians are not indigenous because they are "Arab" relies on the historically illiterate assumption that the 7th century Islamic conquests entirely replaced the native population of the Levant. Modern historians, anthropologists, and extensive genetic studies (including DNA analysis comparing ancient Canaanite remains to modern populations) confirm that modern Palestinians are overwhelmingly descended from the continuous, pre-Islamic inhabitants of the land.
Over centuries, those indigenous populations adopted the Arabic language and culture. This was a process of Arabization, not a population replacement. Using a linguistic shift to erase the multi-millennial, continuous physical presence of a people on their land is not a "historical fact." It is the exact definition of historical erasure.
I can accept the DNA science, but the fact remains that some who identify today as Palestinian have genetic ties to neolithic farmers of the Levant (like many contemporary Jews), but adopted the language, culture, and religion of the Arab conqueror colonists. Do Palestinians see themselves as Arabic or as Israelites? Do they think they are genetically distinct from 1st millennial Jews? Or do Palestinians see themselves as worshippers of Baal who resisted the Hebrew kingdoms of Israel for 2,000 years and later converted to the Arabic-Muslim mandates?
"The picture is not, however, a simple story of identical genomes. Nebel’s 2001 study also found that Jews were slightly more closely related to groups in the northern Fertile Crescent—Kurds, Turks, and Armenians—than to their Arab neighbors, while Palestinians carried distinctive high-frequency J1 haplotypes reflecting migrations from the Arabian Peninsula." -- TTOI, 2/25/2026
You neglect that the Arab states surrounding the nascent state of Israel declared war and invaded and were then assisted and supported by the Arabs living there who now chose to call themselves Palestinians. You ignore that Azzam Pasha, the Secretary-General of this same Arab League declared that they should wage a war of extermination against the Jews. You ignore that the same Arab league urged the Arabs living in Israel to leave so that the Jews could more easily be destroyed. Now THAT sounds like a plan of genocide to me so, I guess you are right. Genocide was ordered in 1948 but it was ordered by the Arabs against the Jews! Funny how you got that mixed up.
You are relying on a fabricated historical narrative that was debunked by Israeli historians decades ago.
First, the claim that the Arab League urged Palestinians to leave their homes is a documented myth. When the Israeli government declassified its state and military archives in the 1980s, Israeli historians like Benny Morris reviewed the internal intelligence reports of the Haganah and the IDF. They found zero evidence of Arab broadcasts or orders telling Palestinians to evacuate. The archives confirmed that the mass exodus was primarily driven by direct military expulsions, such as Plan Dalet, and the terror induced by massacres like Deir Yassin.
Second, you are inverting the historical timeline to justify this displacement. The Arab state armies did not invade until May 15, 1948. By that date, Zionist militias had already violently displaced hundreds of thousands of Palestinian civilians and destroyed dozens of villages. The ethnic cleansing of the indigenous population was already fully underway months before the surrounding Arab armies crossed the borders.
Finally, pointing to the inflammatory rhetoric of Azzam Pasha does not retroactively justify the systematic expulsion of 700,000 civilians. A war crime committed against an indigenous population cannot be legally or morally erased by quoting the bellicose statements of a neighboring diplomat. The material reality of 1948 was the planned and executed removal of a civilian population to engineer a demographic majority.
Oct 7th was an intended genocide
...and a monumental FUBAR for the Palestinian cause.
on Oct 7th I became a fierce zionist. we also learned that the Palestinians are barbarians. period.
“the experts have ruled” = "the science is settled"
For me, the ultimate test of definitions is Indonesia. Somewhere between 500,000 and 1,000,000 communists and other leftists were killed from 1966-1967. I studied the entire English-language historiography that was available, and if communists and leftists were considered an ethnic group, the killings would absolutely be considered genocide. BUT! Even a ridiculous genocide "scholar" like Michael Mann admits the difficulty of defining the mass murders of a million people this way, preferring the term "politicide" instead. That's because in a nation of thousands of ethnicities, no single group contained all the communists.
So my very first test for anyone who says that Gaza is a genocide is to ask them to explain how the deaths of one million Indonesians is not considered a genocide while the deaths of 20,000 civilians in Gaza somehow qualifies for the title. So far, not one self-styled "genocide scholar" on X has been able to explain it. Hardly anyone I ask has ever even heard about the mass killings in Indonesia. You would think the global left would talk about it more, but they do not, and that is because the whole thing started with communists killing people.
They don't want to talk about it because the left comes across as guilty and deserving, even if the response was disproportionate. Weird how that doesn't work with Hamas. I guess Suharto could get away with it because he wasn't Jewish?
We moved to Bali in 1973 and of course, the memory of the rebellion against the communists was still very fresh. They don't talk about it now, but we were told by the people who actually did it, that these happy island people who revere all life as part of their unique blend of Hinduism, Buddhism, & animism, killed every Chinese person and child they could find, associating them with communists. Most were shopkeepers and merchants. Wiped them off the island. They were killed with kitchen knives, kris daggers, scythes, and rice hoes. No explanation as to where the bodies went. Gruesome.
Cool story but the victims were overwhelmingly indigenous Balinese accused of belonging to or supporting the Indonesian Communist Party, along with people targeted through family, political, caste, or local rivalries.
Ethnic Chinese people did suffer persecution in Bali, with shops attacked and looted. Dozens were killed and many fled. Anti-Chinese sentiment was connected to the association of China with communism and to the fact that some Chinese Indonesians had connections with organizations accused of being communist. But the total number of Chinese killed throughout Indonesia was ~2000.
Office of the Historian, US Department of State - https://history.state.gov/historicaldocuments/frus1964-68v26/d162
Maybe they didn't want to tell you about killing so many of their own.
Yes, that part of the story was left out.
You left out the true "part" to tell a big lie "that these happy island ... killed every Chinese person and child they could find."
That's what the folks in Ubud told us. They probably know more about the truth than anyone since they did the killing.
You really are a dimwit.
In the primary sources, it is very clear that Balinese killed Balinese, which is how Suharto did it. Mostly they used traditional swords. The Army of Indonesia would recruit the killers, who would remove the communists from their own families. Women were frequently spared, but they disappeared into the family and no longer had public lives. Anti-Chinese sentiment was always present but the close relationship between the Indonesian communist party and Mao was a more immediate concern. I looked into this question and while thousands of Chinese died, it was a tiny fraction of the whole.
The reason the 1965 to 1966 mass killings in Indonesia are categorized as politicide or crimes against humanity rather than genocide is strictly structural: the 1948 Genocide Convention explicitly excludes political groups from its protected categories (limiting protection to national, ethnical, racial, or religious groups). That is a known limitation of the treaty's negotiated scope, not an evidentiary contradiction. Palestinians in Gaza are recognized under international law as a distinct part of a protected national and ethnic group. Comparing the legal classification of an excluded political faction to a protected national group misunderstands why the Convention applies differently across historical contexts.
I love your work and your wife is a brilliant and talented soul. My issue is that you are doing the work for the people who need to prove the claim. This great writing can just be dismissed and, sadly, will be dismissed. We live in a post truth environment and as long as we are the ones explaining why this isn't a genocide, we have given the enemy exactly what they want: more time to stall and carry out their grift.
Gerald correctly highlights that 'genocide' is a precise legal term governed by Article II of the 1948 Genocide Convention, requiring proof of dolus specialis—the specific intent to destroy a group as such—rather than a synonym for tragic civilian casualties in high-intensity urban warfare. He is right to push back against substituting social media consensus for rigorous evidentiary standards.
However, issuing a definitive final verdict—whether affirmative or negative—pre-empts the very institutional process he cites. The International Court of Justice found South Africa's allegations plausible enough to warrant provisional measures and a full, multi-year trial. Because the standard of proof for intent remains one of the highest bars in international law, the determination belongs strictly to the ICJ's formal, adversarial fact-finding process, not to public commentators declaring the case closed from either side.
This is an important distinction, but the premise that we can simply rely on the formal institutional process assumes that international tribunals are permitted to operate neutrally without direct political subversion. Look at what happened when the International Criminal Court (ICC) followed its formal evidentiary process and issued arrest warrants for war crimes and starvation: the United States, led by Secretary of State Marco Rubio, responded by placing financial sanctions, asset freezes, and visa bans directly on sitting ICC judges and prosecutors (including ICC President Tomoko Akane), declaring an explicit goal to systematically dismantle the court. Commentators demand rigorous adherence to international legal standards, but the moment an international judicial body applies those exact standards to Western allies, political power moves to sanction the judges and delegitimize the institution. The resistance to these findings is fundamentally political, not a principled defense of legal procedure.
You make a compelling point about legal realism: international law does not exist in a vacuum, and power politics—including sanctions against ICC officials—frequently attempts to subvert judicial independence. Ignoring that structural vulnerability would be naive.
However, political resistance to a court's findings does not invalidate the necessity of the legal standard itself. The fact that powerful states try to pressure or delegitimise tribunals like the ICC or ICJ actually proves the threat that formal, adversarial fact-finding poses to political power.
If we abandon the institutional process because it is politically targeted, we are left with nothing but power politics, raw geopolitical leverage, and high-decibel social media consensus as our arbiters of international law. The system is structurally flawed and under political siege, but rigourous evidentiary standards remain our only defence against sheer power defining reality.
We are in agreement that the evidentiary standards must not be abandoned. My critique is not of the institutional process itself, but of how pundits use "let the courts decide" as a cynical stalling tactic while their governments actively sabotage those exact courts. The ICC and ICJ did apply rigorous evidentiary standards, which resulted in arrest warrants for engineered starvation and a finding of plausible risk under the Genocide Convention.
We cannot pretend the institutional process is functioning neutrally when the states demanding we respect the process are simultaneously sanctioning the judges who execute it. We must uphold the standard, but we also have to call out when the demand for "process" is being weaponized to shield allies from accountability.
Great essay and great discussion. Thanks, Mr. Posner, well done.
I appreciate the extent you went through to explain the history, definition and intent behind the word genocide, the recognition of which is important for a true understanding of our past and, sadly, future atrocities. It's a brave and bold discussion to have online. As an aside, would you add Armenia to that list of genocides?
I can only speak for myself when I say that my difficulty lies in accepting any rational for killing civilians, however it is defined. "A just war" is something I can't wrap my head around, even though I understand the need to defend one's self or country. IMO a crime against humanity seems equally horrible as a genocide, even if the intent is more specifically defined.
Yes, definitely. Lemkin himself cited the Armenian Genocide, together with the Holocaust, as the defining prototype of the crime he was naming.
You should add Armenia because the original framework that Lemkin was coming up with was because of Armenia and not necessarily the Holocaust. It wasn't until later that the word "genocide" itself was coined by him, but his original framework was in relation to Armenia.
It is important to note that in the law of armed conflict and IHL there is an expectation of innocent civilians being killed. That's the entire premise of what the proportionality assessment requires us to understand in how we mitigate, but not eliminate, civilian harm.
You have just expressed why war is evil and ultimate consideration should be taken before starting one.
I wish Hamas fighters stayed home
I wish martyrdom wasn’t the strategy Hamas used.
Sadly Hamas knows the cost and has admitted openly that the it was a worthwhile endeavor.
It’s not on the defender to stand down to prevent harm.
It’s also not on the defender to not exact a cost that should give its enemies that are surrounding them pause.
Any other logic would validate Hamas human shield strategy. Israel didn’t go full out, or even a quarter. Israel put its own soldiers at risk, Israel telegraphed their strikes.
I agree with you. But it was Hamas that set the cost. Not Israel. This forever war the Arabs want must end. Anyone who chants “free Palestine” post October 7 is encouraging the violence to continue.
Excellent work!
Appreciate the distinctions being made, it’s important to get a better understanding whether it’s liked or not.
Israeli Holocaust historians Omer Bartov and Roz Segal must be wrong. Gerald’s the real expert.
They are wrong, though. They do not assess genocidal intent, they misstate the law and take statements out of context as the author points out here. They're historians, not legal experts, so it would make sense that they themselves don't know how to assess this.
Raz Segal also made his accusation on October 13, 2023 and made his without actually assessing the required intent or understanding it in the context of the only reasonable inference test.
Omer Bartov doesn't actually assess intent, he assumes it because of the "Amalek" statement and "human animals" one. Which, as noted here, isn to genocidal when placed in context (which is required to do). He also makes a nonsensical argument to Hiroshima and does not assess the issue of Hamas' conduct in urban war.
So, they should be discarded as unserious accusations that lack the legal analysis required.
Well said. Enough with these fake quotes.
Anyone who wants to learn the truth about all the grossly misleading quotes from Israeli leaders that all the “antizionists, not antisemites” circulate to claim genocidal intentions, should read this; it completely debunks all the hoaxes:
- Yair Rosenberg, What Did Top Israeli War Officials Really Say About Gaza?, Journalists and jurists point to damning quotes from Israel’s war cabinet as evidence of genocidal intent. But the citations are not what they seem, 21/01/2024
https://www.theatlantic.com/international/archive/2024/01/israel-south-africa-genocide-case-fake-quotes/677198/
Without paywall:
https://archive.ph/ZJRna
That piece is from Jan. 2024. Try again.
These are the quotes upon which the "genocide" hoax is based. In all cases and fake reports, these and only these are used. Do your homework next time. Try again.
Fox-Panderer-Posner or Israeli-American historian, and genocide authority Bartov - The Dean's Professor of Holocaust and Genocide Studies at Brown University, where he's taught for three decades. Segal is similarly unimpressive.
No need to get hung up on a word, though.
Historians ≠ legal authorities. Their job is to make historical comparisons and understand what happened at the time.
Bartov didn't do that, he used incorrect legal arguments and did not apply the law.
Dismissing scholars like Omer Bartov because they are historians rather than jurists misapprehends how courts establish genocidal intent. International criminal tribunals routinely rely on expert historical and demographic testimony to evaluate the context of state rhetoric and military conduct. Furthermore, the analysis of intent does not rely solely on disputed phrases in isolation. Under ICJ jurisprudence (such as Bosnia and Croatia), when direct orders are classified, courts look at whether intent is inferred from a comprehensive pattern of conduct. When total siege tactics, the systematic destruction of water, energy, and medical infrastructure, and mass displacement mirror the dehumanizing rhetoric of senior officials, it provides the precise factual foundation required to evaluate dolus specialis.
This comes from the only reasonable inference test. See: Bosnia v. Serbia (2007) para. 373: "“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 to the existence of such intent.”
We can even look towards ICTY with Tolimir which says the same thing.
This requires that it be the only reasonable inference based on the totality of the evidence, and that requires us understand the full totality of the facts including the assessment of the other belligerent party.
Historians like Bartov don't tell you this, nor do they apply this. If they do not do this, they should be written off. Bartov misapplies statements (taken out of context) and uses that to infer intent. That's not how the law works.
Also, total siege tactics are legal, so that's not a very good argument for an inference to intent. But there is a good argument to make on destruction of water. Yet the energy and medical infrastructure is not a good argument unless you can prove that the only reasonable inference there is genocide, which again, requires no other alternative explanation. We do know that diversion of petroleum has existed (another reasonable inference), and we know that Hamas has fought from and weaponized hospitals and medical infrastructure (GC IV 19 applies and is thus another reasonable inference). Probably important to point out that the "dehumanizing rhetoric" is almost always applicable directly to talking about Hamas, and not Palestinians as a whole. Palestinians are protected, Hamas is not.
Without raising these issues you do not assess the analysis and historians never apply this. Bartov does not apply the legal analysis.
So, yes, we should discard those who do not apply the legal analysis that is required from the jurisprudence. That's kind of the point.
You're a recent third-tier toilet grad, Straw Man. And Posner's a craven maga-glazer/bibi-glazer.
I don't like use of the word, but your argument is an anemic joke.
If you want to make an accusation of genocide, you should actually utilize the jurisprudence as it is required. Not misstating the law or not applying it at all.
Historians are not legal scholars, and he is not qualified to make a legal determination. This is demonstrated repeatedly by his lack of understanding of the analysis.
Tell it to the internet, dear.
You are misstating the laws of armed conflict. Total siege tactics that deprive a civilian population of goods indispensable to its survival are not legal. Under customary international humanitarian law and the Rome Statute, intentionally using starvation of civilians as a method of warfare is a war crime. Executing a complete siege that cuts off water, food, and electricity to two million civilians cannot be defended as a standard military operation.
Your application of the only reasonable inference test also ignores the total scale of the destruction. It is true that Hamas operates in civilian areas, but the complete obliteration of Gaza's healthcare system, universities, and agricultural sectors goes far beyond neutralizing militant infrastructure.
Claiming that dehumanizing rhetoric only applies to Hamas ignores the public record. When President Isaac Herzog stated that an entire nation out there is responsible, he explicitly eliminated the distinction between militant and civilian. Coupling this systematic material destruction with statements from top leadership eliminating civilian distinction makes the inference of genocidal intent not just reasonable. It reflects the reality of state policy.
This is super interesting because you are confusing multiple pieces of international law. You also seem to be making conclusive statements absent legal fact and evidence.
Let's start in reverse order, when President Herzog said "an entire nation is responsible, it is not true that they could not have done something" is not a dehumanizing statement in context of what was said in the totality of the press conference. It also explicitly stated him calling for innocent Palestinian civilians to be protected from the conflict. The sentence you are referring to was him discussing the fact (which is known) that civilians participated in the atrocities on October 7, we also know that civilians brutalized Israeli civilians when they were taken into Gaza as hostages. So, if he was in a position to act as a person who could set state policy, in the context of what he was talking about, you would not find it to be genocidal.
But we also need to discuss the fact that he, as the President of the State of Israel, does not actually set state policy. He does not dictate military strategy. He does not oversee the military and has no authority to do so. Citing to him is a bit of a misdirect and red herring. Unless you want to state that there is a path to incitement to genocide, which there isn't because of the context of the statement.
Next, the only reasonable inference test. The scale of destruction when assessing the conduct of both belligerent parties raises another reasonable inference. You are trying to make an assumption that the scale of destruction of infrastructure is evidence of genocidal intent, for that to be true it would have to indicate that it threatens the very existence of the Palestinian civilians in Gaza. It doesn't. To understand this requires us to understand what "in part" means in the Genocide Convention's Article II. This can be found in the ICTY's Krstic Appeals Chamber decision which tells us that you must demonstrate that the intent and act destroys such a substantial portion of the group that it threatens the groups viability to continue to exist within the area of control. In the ICTY's Sikirica Trial Chamber decision they stipulate that about 3% destruction is not indicative of substantial destruction to constitute the in part requirement. Gaza's total population killed is about 3%. So we can draw a parallel based on the existing jurisprudence to find that the in part requirement for both mens rea and actus reus is missing. This is important in understanding the only reasonable inference test because it errs against genocidal mens rea. But also, we must understand if there is a reasonable explanation other than genocide that exists. Hamas' systemic weaponization of civilian and humanitarian infrastructure is well documented, as is the fact that they have fought from homes, mosques, and schools. Gaza is also one of the most dense urban areas in the world. So coupling these two things together raises another reasonable inference. Now, that reasonable inference could still be a demonstration of illegal conduct by Israel, but that does not mean it is genocide. However, we also know that the Geneva Conventions have explicit legal guidelines on this under GCIV 19 & 28, and API 51(7) which expressly do not immunize such areas from harm if civilians are present and a combatant party is fighting from them. Which errs against illegal conduct by Israel, and instead that Hamas has committed gross violations of LOAC and IHL.
What this comes down to is that the standard for the only reasonable inference test is effectively beyond a reasonable doubt. If there is a demonstration of doubt, then the only reasonable inference test cannot sustain an inference to genocidal mens rea, and thus cannot establish the elements of the crime of genocide so genocide is not a legally available explanation.
Basically, what you are saying is resting on the assumption that Hamas did not operate in a manner in which we know that they have operated – and the available evidence does support. (See, for example: https://time.com/6693896/hamas-tunnels-gaza-home-ruin/).
Finally, you're confusing two separate issues with siege (which is legal as long as there's a reasonable means of escape, which when there was a total siege early in the war, the Israelis gave a one month window for escape) and diversion of aid for the purpose of material benefit. (See: GCIV 23). When a belligerent diverts aid to materially benefit from the aid, the aid can be ended.
You can actually critique this as a bad strategy and oppose it without obscuring the fact that we know that Hamas diverted aid. This is where we can say that a better strategy would've been to destroy the economic viability of the aid by flooding Gaza with food and medicine. This is a hindsight argument, one I agree with, but not relevant to the legality of the conduct itself.
When you say "intentionally using starvation as a method of war is a war crime." This is totally true! But again, this requires assessing the possible legal explanations for ending aid. Things you can reasonably oppose. However, that would then cause doubt of the mens rea requirement (this is a specific intent crime).
So, no, I am not misstating or misapplying the law. I'm raising relevant issues that a tribunal would need to assess and if they are found to be minimally credible, they would defeat the claims on the standard of the burden of proof at both the ICC and the ICJ. And an important point to note: The ICC has expressly rejected the warrants requests for the crime against humanity of extermination (like genocide but without the mens rea element) for Netanyahu and Gallant. This was at the reasonable grounds standard in which the PTC I takes everything that the prosecutor says as objectively true and weighs that to if that demonstrates that the elements could be present. That's the lowest standard in the law. So if you cannot get extermination at reasonable grounds, you cannot get genocide on fully conclusive, the highest burden of proof.
You are conceding the standard and then declining to apply it to the record. Let me take your points in order.
On Herzog, fine. He is a ceremonial president and I would not build a case on him. The ICJ still quoted him in paragraph 52 of its 26 January 2024 order, alongside two ministers who did set policy: Gallant, who on October 9 announced a complete siege with no electricity, no food, no fuel, while calling the people on the other side "human animals," and Katz, the Energy Minister, who on October 13 wrote that "all the civilian population in Gaza" was ordered to leave and would "not receive a drop of water or a single battery until they leave the world." That is the Defense Minister and the Energy Minister, the two people who controlled the siege, describing it. And Katz's statement is addressed to the civilian population by name, not to Hamas. So much for the rhetoric only ever being about combatants.
That brings up the timeline problem with your GCIV 23 argument. The total siege was declared on October 9. The first aid trucks did not enter until October 21. You cannot divert aid that has not entered. The decision to cut water, food, and fuel to two million people predates any aid to divert, so diversion cannot be the alternative inference for it. And the ICC Pre-Trial Chamber looked at exactly this defense. It found reasonable grounds to believe there was "no clear military need or other justification" for the restrictions, that Netanyahu and Gallant "intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival," and that this "created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza." That last phrase is Article II(c) of the Genocide Convention nearly verbatim.
On siege law, there is no "reasonable means of escape" exception. AP I Article 54 and customary rule 53 prohibit starving civilians, full stop. And there was no escape. Rafah was closed. Moving people from northern Gaza to southern Gaza inside a sealed strip that was also being bombed is relocation within the siege, not escape from it.
Your Krstić argument cuts against you. Srebrenica involved 7,000 to 8,000 men out of roughly 40,000 in the enclave, out of about 1.4 million Bosnian Muslims. Well under one percent of the group. The Appeals Chamber held that numeric size is "the necessary and important starting point, though not in all cases the ending point," and weighed the emblematic character of the part and the perpetrator's area of control. It also held the intent element is satisfied where the perpetrator "intended to destroy at least a substantial part." Intended. Genocide does not require the destruction to be completed, so a death toll of three percent is not a legal ceiling on anything. Sikirica was a 2001 trial-level Rule 98bis ruling about detainees at one camp, decided before Krstić Appeals. Nobody treats it as a numeric threshold. And three percent is a floor: the Health Ministry count is over 72,000, the Lancet Global Health household survey put violent deaths at 75,200 by January 2025 plus 16,300 non-violent excess deaths, and thousands remain under rubble. II(c) does not count bodies anyway. It counts conditions.
On extermination, read what the Chamber actually said: it "could not determine that all elements" were met on the prosecutor's record, which closed on May 20, 2024, and it charged murder instead. That is an evidentiary limit on a seven-month record, not a merits rejection. The IPC Famine Review Committee confirmed famine in Gaza Governorate on August 22, 2025, fifteen months after that record closed. And the ICJ does not need the ICC. State responsibility and individual liability are different cases on different records.
Finally, a Time article about tunnels under houses does not supply an alternative inference for the totality. The alternative has to explain the whole pattern, including a siege ordered before there was aid to divert and the ministers who ran it stating why. The UN Commission of Inquiry applied the Bosnia only reasonable inference standard in September 2025 and found four of the five Article II acts and incitement by Herzog, Netanyahu, and Gallant. You can disagree with the conclusion. You cannot keep saying the legal analysis has not been done. It has. You do not like the result.
Super interesting, because this is still a bit incorrect on your application. Gallant's statement specifically referred to Hamas when he said "we are fighting human animals and we will act accordingly."
Now, I do think you raise an appropriate point on Katz, but the Katz statement is still inapplicable because the reference was for Gaza City, which was given a month to evacuate. The siege itself was specifically for Gaza City.
The issue related to the charge of aid was not related to the immediate first month of the war. It was related to the time extending until April 2024. This is important in the timeline that you refer to. This all hinges on the necessity of the aid, and what the facts are surrounding the aid – including diversion. We knew that Hamas was diverting aid early on in the war, this was done as a means to (1) support their efforts; (2) tax it; and (3) to store it for their future needs.
As an important reminder: The PTC I only views the evidence as portrayed by the prosecutor in light most favorable to the prosecutor. So they do not assess any possible reasonable alternative explanation. They actually cannot assess any reasonable military necessity because they do not have that as a means of rebut. That's the stage of the process they were at, at the time. So to raise that is nonsensical on its face because it doesn't actually address the standard at the time of granting warrants.
Probably important to also point out that Rafah was not closed. Rafah was open for evacuation *if* people could pay Egypt $5,000 as a bribe. We know this as factually true.
My Krstić argument is important to place into the context of Srebrenica. They did not assess this as a weight to the totality of the Bosnian Muslim population, they measured it only to the Bosnian Muslim population of Srebrenica which accounted for about 30% destruction, all males. At the same time the Chamber discusses the necessity of males for procreation. The portion killed in Srebrenica being all males, in a protected zone, gave them the ability to establish the inference. This is incredibly important and trying to weigh this to the whole of the Bosnian Muslim population is not what the ICTY chamber did.
On note about the ICC chamber, I suspect this would still be the case based on the actions and words of the now former-ICC prosecutor.
I also need not raise a totality of evidence to demonstrate a fundamental issue with the discussion with the law in Gaza. The tunnel infrastructure under civilian homes is a notable piece of evidence that will aid in inferring against genocidal intent. Since genocide requires a fully conclusive standard of proof, this necessarily raises doubt. This need not be the only piece of information demonstrating this fact. Israel likely would raise much more in their written statements and oral arguments. What's important is to note that Article II(c) relies on the *deliberate* infliction of conditions calculated to bring about the destruction of the group (physical destruction). You notably ignored the Sikirica chamber's statements, which is extremely relevant here. About 3% does not constitute such a substantial portion of the group to constitute "in part destruction."
I need only raise enough to cause doubt, and in an online debate on Substack, need not be a demonstration of the full breadth of evidence. I need only raise the issues to demonstrate that other reasonable inferences exist. And if other reasonable inferences exist on the totality of the evidence, then it cannot establish genocidal intent.
What you appear to be doing is ignoring the facts and totality of the evidence to try and twist the evidence to portray what you want the evidence to conclude. Unfortunately for all of us who are lawyers, that's not how the law works in our cases, it depends on what the law actually says.
It is not me that does not like the result, nor is it me taking statements completely out of context (thank you for conceding this with Herzog, by the way). It is you that does not like the result of the law itself.
It is on the proponent to prove their case to the burden of proof of fully conclusive, not me as the defense to disprove the claim. I need only raise enough doubt to make it that the standard is not met. If the standard is not met, it cannot be genocide.
And it is important to note that the substantiality portion is incredibly relevant and your misapplication of the full standard there would defeat it in itself.
Anyways, I appreciate the respectful conversation. I'm off to finish making dinner and this brief to the ICC on behalf of Palestinian victims.
I hope you enjoyed your dinner. Before the law, the facts, because three of yours are wrong in ways that are easy to check.
First, "the siege itself was specifically for Gaza City" is not true. Gallant's October 9 order was a complete siege on the Gaza Strip: "No electricity, no food, no water, no gas - it's all closed" (https://www.aljazeera.com/news/2023/10/9/israel-announces-total-blockade-on-gaza). The electricity cut killed the Strip's sole power plant on October 11 when its fuel ran out (https://www.cnn.com/2023/10/11/middleeast/gaza-power-plant-shuts-down-intl/index.html), and nothing entered any crossing for the entire territory until October 21, when the first twenty trucks came through Rafah, at the far southern tip (https://www.npr.org/2023/10/21/1207753842/egypt-gaza-border-crossing-opens). If the siege had been on Gaza City, there would have been nothing to open in the south. Your own escape argument concedes this: nobody needs to flee a Gaza City siege through Rafah.
Second, "a month to evacuate." The October 13 order, delivered through the UN, gave 1.1 million people in northern Gaza 24 hours (https://www.cbsnews.com/news/israel-military-tells-united-nations-over-one-million-palestinians-should-evacuate-southern-gaza-within-24-hours/; https://www.ohchr.org/en/press-releases/2023/10/israel-must-rescind-evacuation-order-northern-gaza-and-comply-international). And they were evacuating into the southern half of the same sealed, besieged, bombed territory. That is relocation within the siege, not escape from it.
Third, Rafah. During the total siege, October 9 through 21, it was closed to everyone. It opened November 1 for limited numbers of foreign passport holders and wounded (https://www.aljazeera.com/news/2023/11/1/egypt-opens-rafah-crossing-for-limited-number-of-gaza-patients). The $5,000 payments you cite went to an Egyptian broker, Hala, months later, documented by NPR (https://www.npr.org/2024/03/02/1234439113/palestinians-leave-gaza-egypt-hala) and OCCRP (https://www.occrp.org/en/feature/only-those-with-money-can-leave-gazans-pay-thousands-to-escape-through-egypt). If your legal theory is that a siege becomes lawful because a starving population of 2.2 million can theoretically ransom itself out at $5,000 a head to a third country's fixer, I am happy to let that argument speak for itself. The starvation prohibition in AP I Article 54 does not have a means test.
On the ICC, you have now made two arguments that cannot both be true. Last comment, the Chamber's decision not to include extermination was decisive: if you cannot get extermination at reasonable grounds, you cannot get genocide at fully conclusive. This comment, the PTC "only views the evidence as portrayed by the prosecutor," "cannot assess any reasonable military necessity," and citing it is "nonsensical on its face." Pick one. If the Chamber's findings are one-sided rubber stamps, your extermination point evaporates with mine. If they carry weight, then it found no clear military need or other justification under IHL for the aid restrictions (https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges), which is an assessment of exactly the thing you say it cannot assess. And the warrant covers October 8, 2023 through at least May 20, 2024, so "the charge was not related to the immediate first month" is also wrong. The first month is inside the charged period.
On Krstić, you have just conceded the argument. You say the Chamber measured destruction against the Bosnian Muslims of Srebrenica, the community within the perpetrator's area of control, not the whole group. Exactly. Substantiality attaches to the part targeted, not to a percentage killed. The part in Srebrenica was about 40,000 people; the part here is the 2.2 million Palestinians of Gaza, the largest concentration of Palestinians under a single authority anywhere on earth. If that part is substantial, and it is, the question becomes acts and intent, and the II(c) conditions, the siege, the famine the IPC Famine Review Committee confirmed on August 22, 2025 (https://www.who.int/news/item/22-08-2025-famine-confirmed-for-first-time-in-gaza), the destruction of most of the housing stock and the displacement of ninety percent of the population, were imposed on all of that part, not three percent of it. On your own Srebrenica math, roughly twenty percent of the enclave's population killed was genocide while less than one percent of the group died. The kill ratio is not the test in either direction, which is also the answer on Sikirica: the two to three percent figure there described the share of Prijedor's Muslims detained at one camp, as evidence of what was targeted, in a Rule 98bis ruling three years before the Krstić Appeals Chamber set the multi-factor standard (https://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.htm). It is not a threshold, and no chamber since has used it as one.
You are right that a defense needs only doubt. But doubt has to be built out of true facts. A 24-hour order described as a month, a strip-wide siege described as Gaza City, a closed crossing described as open, and a charged period that includes the month you excluded do not raise reasonable alternative inferences. They show the alternative story requires amending the record to work.
Good luck with the brief. The victims will be well served if it holds the record to the standard you have been demanding from everyone else.
I address Bartov and some others in the article
Raz Seagal quotes Gallant's statement from Oct 9th. He does not mention at all that on that very same day the IDF clarified he was referring to Hamas fighters not civilians. Seems pretty weak evidence. Also sieges have been enacted in other wars without them being deemed to be genocide and this siege was reversed shortly after it was enacted further indicating this was not genocidal as if it was it would not have been reversed.
Raz Segal said rhetoric from Pres Joe Biden referring to Oct 7th as "an act of sheer evil" was dehumanizing language.
His other evidence of genocide is Channel 14 where people have called to turn Gaza into Dresden or to flatten it... stuff that people on social media say routinely about Israel... what he does not mention is people saying stuff like this who are not part of the chain of command and do not set policy is not evidence of genocide.
Omer Bartov is similarly pathetic. He relies on the same contested statements to find intent, a ridiculously low standard never upheld in any other genocide case. Then he looks at the conduct of the war, all types of conduct covered in genocide cases like Croatia v Serbia (not genocide) and he insists on explaining it via genocide and refusing any other inference including a brutal urban war against an entrenched militant group that does not fight according to Int'l Law.
None of them can adequately explain why it is a genocide. Neither can you.
Arguing that the siege was merely a temporary measure directed at Hamas ignores the operational reality documented on the ground over the past two years. The ongoing destruction of civilian life support systems (water treatment plants, bakeries, sanitation, and hospitals) combined with severe, documented restrictions on basic humanitarian aid directly addresses Article II(c) of the Genocide Convention: deliberately inflicting conditions of life calculated to bring about physical destruction. When conduct predictably results in widespread famine and the collapse of essential survival infrastructure for an entire population, it exceeds legitimate counter-insurgency and forms compelling evidence of state-directed collective destruction.
Objectively the population has not had this mass die off that you just implied should occur. Also IPC Phase 5 would have resulted in hundreds of deaths per day from lack of nutrition which never happened and no one has claimed it did.
So even if you mistakenly believed your propositions a year or two years ago and thought there would be some mass die off, we now have direct evidence that your propositions are flawed.
You are fundamentally misreading Article II(c) of the Genocide Convention. The law does not require a completed "mass die-off" to trigger; it criminalizes the act of "deliberately inflicting conditions of life calculated to bring about its physical destruction." Systematically destroying water grids, sanitation, bakeries, and hospitals meets that exact definition. Furthermore, tens of thousands of civilians have already been killed by high yield munitions, thousands more are unaccounted for under rubble, and the destruction of the medical infrastructure has predictable, devastating consequences.
Minimizing this catastrophe because the death toll hasn't reached a specific arbitrary threshold does not erase the criminality of destroying the very infrastructure required to keep a population alive.
You quoted the text but skipped the operative word. "Calculated to bring about its physical destruction." Calculated is a purpose requirement, not a consequences requirement. It tracks the chapeau's specific intent: the conditions must be inflicted as the chosen means of destroying the group as such.
Everything in your comment establishes foreseeability, not purpose. You say the destruction has "predictable, devastating consequences." Predictable is the wrong category. Foreseeing that death will follow from an act is knowledge. II(c) requires that destruction of the group be the object of the act. A belligerent who wrecks infrastructure in urban combat, even recklessly or callously, foresees death without it being calculated to destroy the group. The Convention draws that line deliberately, because otherwise every siege and bombing campaign in history is genocide by definition.
That is why the ICJ set the bar where it did. In Bosnia and again in Croatia, the Court held that when intent is inferred from a pattern of conduct, genocidal intent must be the only reasonable inference available. Not a plausible one. The only one. So the question is not whether the destruction is terrible or whether the deaths are foreseeable. Both can be granted. The question is whether an alternative reasonable explanation exists.
It does, and your own framing supplies it. A party calculating the physical destruction of a population does not simultaneously facilitate the aid required to keep that population alive. That is not a mitigating detail. It is direct evidence that destruction is not the object, which means genocidal intent is not the only reasonable inference, which means II(c) is not satisfied on your own account of the facts.
Your argument rests on separating conduct from explicit purpose, but the legal record connects both.
First, on the distinction between purpose and foreseeability: you argue that intent cannot be inferred because alternative military explanations exist. However, international courts do not evaluate physical conduct in a vacuum when senior officials state the purpose on the record. When Finance Minister Bezalel Smotrich publicly states that starving two million people might be "justified and moral," and National Security Minister Itamar Ben-Gvir repeatedly calls to halt all aid and push for population transfer, they are articulating the exact purpose behind the policy. When ministers with control over state resources, borders, and enforcement explicitly state the objective, treating the resulting deprivation as an unintended consequence of urban combat falls apart.
Second, your claim that Israel "facilitated aid" contradicts the factual findings of every major international body on the ground. The ICC issued arrest warrants specifically for the war crime of starvation as a method of warfare and crimes against humanity. Letting an inadequate trickle of aid through under immense international pressure, while systematically destroying local water systems, agriculture, and bakeries, is not facilitation. It is the calculated regulation of subsistence.
Third, the "only reasonable inference" standard from Bosnia and Croatia applies when intent must be deduced solely from ambiguous military operations. When severe physical destruction of life-sustaining infrastructure directly aligns with the stated aims of senior government leaders, the threshold for dolus specialis under Article II(c) is met. You cannot use the presence of armed combatants to grant total legal immunity to a state policy that systematically destroys the material conditions necessary for a civilian population to survive.
I haven't appreciated the use of that word either, but it's rich that you're quoting the International Criminal Tribunal on Former Yugoslavia and other ICJ bodies, given their pesky war crimes indictments, various UN reports, and what they're going to be releasing - https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session60/advance-version/a-hrc-60-crp-3.pdf
I posted the following on Facebook. Zionist chatbots and hasbaroids swarmed with so many comments that willfully ignored the short clear definition of genocide from the convention which I had posted.
apparently attempting to redefine what genocide is is very important to the Zionist project.
https://substack.com/@piglistener/note/c-318501403
Hamas' charter is a declaration of genocidal intent against Israel and Jews. And they act upon it, stating their intent to commit October 7 ten thousand times. Has Hamas been charged with genocide?
You are using a false equivalence to excuse collective punishment. The atrocities committed by Hamas on October 7 were horrific, and the ICC Prosecutor has applied for arrest warrants against top Hamas leaders for war crimes and crimes against humanity, including extermination and hostage-taking. No serious international legal scholar is defending Hamas.
However, the laws of armed conflict operate on an absolute prohibition against collective punishment. The criminality of a militant faction does not grant a state military the legal right to engineer a famine, dismantle the medical grid, and inflict mass civilian casualties on millions of stateless people.
You cannot point to Hamas's rhetoric to legally or morally justify the systematic physical destruction of the Palestinian civilian population in Gaza. International humanitarian law is not a reciprocal waiver system.
We’re anti-Zionist Jews and we see genocide unfolding in Gaza
As Jews, we condemn what Israel is doing in Gaza. Any mass slaughter will not just be on Israel’s hands, but on the hands of America
by Ellen Brotsky and Ariel Koren
18 Oct 2023
https://www.theguardian.com/commentisfree/2023/oct/18/israel-gaza-hamas-palestinians
"I think that 10,000 is genocide," said Charny. "If that's not genocide, what is? You have 10,000 unarmed civilians of religion who were murdered by adherents of religion Y. What is that? Political murder? I think that's genocide."
-Prof. Israel Charney, director of Israel's Institute on the Holocaust and Genocide
https://haaretz.com/2006-06-08/ty-article/how-many-murders-constitute-a-genocide/0000017f-dbd4-d3a5-af7f-fbfe8da90000?lts=1699323129903
Mr. Posner provides a thorough reading of black letter international law, but his conclusion relies on a flawed compartmentalization of the evidence. He treats the explicit rhetoric of top officials, the systematic dismantling of life sustaining infrastructure, and the mass civilian casualty rates as isolated data points rather than a cohesive operational pattern.
Posner argues that statements ordering a complete siege are mere wartime rhetoric directed at Hamas. In international criminal jurisprudence, when the rhetoric of senior leadership precedes and exactly mirrors the operational reality on the ground (such as the engineered collapse of the healthcare system and widespread starvation), treating those statements as hyperbole is analytically weak. It forms direct evidence of state policy.
He also leans on a percentage fallacy. Arguing that a 3.4 percent death toll over two years disproves genocidal intent by comparing it to Rwanda ignores established precedent. The ICJ ruling on Srebrenica confirmed that destroying a localized part of a group meets the legal threshold.
Posner correctly notes that military necessity is a defense against inferring genocidal intent. But when siege tactics deliberately withhold the basic prerequisites for biological survival for the entire civilian population, the action ceases to function strictly as a counter insurgency operation. You cannot artificially separate the war crime of engineered starvation from the stated intent of the leaders who ordered it.
Zach Foster should read this. Will it make a difference? (No. He’s irredeemable)
Your legal rigor in your argument is admirable, but there are a few things that your rigorous talent should not permit. You move from "no competent tribunal has ruled that Gaza meets the Article II threshold"-which is factually accurate, to "Gaza does not meet the test", which is a different claim.
The first is a statement about the current state of judicial process. The second is a substantive determination that only a tribunal has the standing to make. You name the ICJ timeline (South Africa's Reply November 2027, Israel's Rejoinder May 2029), you acknowledge the tribunal has not ruled and will not for years and then you present your own analysis as if it substitutes for the tribunal ruling you say hasn't happened. That is a real structural error. When you write "Gaza does not meet the test," you are stating a personal legal conclusion in the register of an adjudicated finding. Under your own stated standard, that determination requires "a competent tribunal that has weighed adversarial evidence, with a defense in the room, and returned that verdict." No such verdict exists. Your own article says so. Therefore, your argument should be "The current legal threshold as most rigorously applied would make a genocide finding in Gaza difficult at this time, and the tribunal that will eventually rule has not yet done so." That is defensible. The version you actually deliver, that "Gaza does not meet the test" is not. You have committed the epistemic move you accused your neighbor of. Your neighbor said "everybody knows" and cited nothing. You say "the test is not met" and cite a tribunal that has not ruled.
Let me address some points - In my articles, I have documented multiple statements at ministerial and prime-ministerial level that go beyond wartime rhetoric. Smotrich's Greater Israel announcement naming specific territories including "all of Palestine", Netanyahu's UNGA address describing continued operations to "the next stronghold" after Gaza City, Danon's UN statement "We have rights to the land. It's not occupied land. This is our land." about the West Bank, Ben-Gvir's video from inside the UNRWA Jerusalem office he had just seized, the 20 August 2026 settlement construction announcement for 1,200 homes in the E1 area, framed by the government itself as intended to "end any chance of a Palestinian state." These are not rhetorical statements about Hamas, they are policy statements about territory and population, made by officials with the authority to direct policy, translated into operational orders.
In regards to 'pattern of conduct where destruction is the only reasonable inference surviving" and your alternative explanation "a brutal war against an armed enemy embedded in a civilian population", - on 6 July 2026, Hamas formally dissolved its Gaza government and transferred civil administration to a UN-backed technocratic body. Israeli strikes continued at the same tempo through the weeks that followed. If the armed enemy formally dissolves its governmental structure and the operation continues at the same tempo, the alternative explanation-that this is a war against an armed enemy-requires further explanation. The second is the operational continuation under formal ceasefire. You cite the October 2025 ceasefire as evidence against genocide. Under that formal ceasefire, one child has been killed per day on average per Haaretz, territorial control has expanded from 53% to 64.9%, Netanyahu has publicly directed further expansion to 70%, and 1,200 new settlement homes have been announced in territory nominally under Palestinian jurisdiction. The alternative explanation "brutal war that has ended" does not fit the operational record of the ceasefire.
"A competent tribunal that has weighed adversarial evidence." You are correct, this has not happened and that it will not happen soon, what you do not name is what will have happened to the population and the territory by the time it does happen. By the time the tribunal rules, the situation being adjudicated will have been overwritten. Whatever verdict comes will not reverse the reconstruction, will not return the population to its former condition, and will not undo the territorial expansion. The tribunal's ruling will be historically significant. It will not be structurally corrective.
And I have to say it, "Genocide for Dummies" is a rhetorical framing. It positions you as the informed expert and anyone using the word without your legal training as ignorant. That framing is not a legal argument, it is a persuasive move that arrives before the argument begins. Rigorous legal analysis does not require condescending to those who reach different conclusions. The title tells me how you want the reader to arrive at your conclusions - not just as informed but as un-embarrassed before the reasoning is laid out. Your article does something structurally problematic while sounding rigorous and I intend to document the architecture that makes this kind of argument possible.