Hamas and allied groups started this war on Oct. 7, 2023. Israel's stated aims of destroying Hamas and freeing the hostages offer a reasonable non-genocidal explanation for its campaign, which cuts against the strict test for genocidal intent.
The Hamas-led attack of Oct. 7, 2023 killed about 1,200 people in Israel and took 251 hostages, and Israel's campaign in Gaza followed with the declared aims of destroying Hamas and bringing the hostages home. Under the ICJ's test, genocidal intent inferred from conduct must be the only reasonable inference, and this context offers a competing explanation. It does not settle the case: self-defence is no answer to a genocide charge, and Israel's conduct must still be judged on the evidence.
This war did not begin in a vacuum. On Oct. 7, 2023, Hamas and other Palestinian armed groups attacked southern Israel. The UN Commission of Inquiry concluded that the attack was premeditated, that civilians were intentionally targeted, and that the killings, hostage-taking and sexual violence were war crimes (A/HRC/56/26, paras. 90 and 91). A UN mission on sexual violence found reasonable grounds to believe that rape and gang rape occurred during the attacks (SRSG-SVC mission report, March 2024). Israeli figures reported by the BBC put the toll at about 1,200 killed and 251 taken hostage.
The ICJ's own order of 26 January 2024 opens by recalling this attack as "the immediate context" of the case (para. 13). The court summarised Israel's position as acting "with the intention to defend itself, to terminate the threats against it and to rescue the hostages" (para. 24). At the 12 January 2024 hearing, Israel's counsel quoted Prime Minister Netanyahu: "Our goal is to rid Gaza of Hamas terrorists and free our hostages" (CR 2024/2, p. 34).
Why this matters in law:
- Genocide requires specific intent (dolus specialis) to destroy a protected group as such. Deaths and destruction, however severe, do not prove it on their own.
- When intent is inferred from a pattern of conduct, it must be "the only inference that could reasonably be drawn from the acts in question" (Croatia v. Serbia, 2015, para. 148). In that case the court rejected genocide because other explanations for brutal conduct were reasonable (paras. 429 to 440).
- A war launched after a mass attack, with declared aims of defeating an armed group and recovering hostages, supplies such a competing explanation. If it remains reasonable on the evidence, that strict test is not met.
Limits of this argument:
- Self-defence is not a defence to genocide. The Convention applies "whether committed in time of peace or in time of war" (Article I). Who started a war does not decide how it may be fought.
- Stated aims are not proof of actual intent. The court took note of statements by senior Israeli officials, among them the Defence Minister saying "We are fighting human animals" (para. 52), and found South Africa's claimed rights plausible (para. 54). The 2024 Commission report found Israeli war crimes (para. 97), and a 2025 Commission paper concluded genocide, which Israel rejects.
- The court has not ruled on the merits (para. 30). This argument shows that a non-genocidal explanation exists. Whether it stays reasonable against the full evidence of conduct is for the court to decide.