Who decides when genocide has occurred? The long legal process hinges on proving intent

Ever since the early days of the Israel-Hamas war, the word "genocide" has stoked controversy as people and countries disagree on whether Israel is guilty of this crime. 

This year, human rights organizations, some genocide scholars and U.S. politicians have said Israel’s response to the Oct. 7, 2023, Hamas attacks amounts to genocide. August polling shows that half of U.S. registered voters reached the same conclusion.

Israel’s military campaign — launched after Hamas militants attacked Israel and killed about 1,200 people and took over 200 hostages — has killed more than 70,000 Gazans, according to Gaza’s Ministry of Health, an agency of the region’s Hamas-controlled government. 

Humanitarian groups caution the violence isn’t over, as Gaza’s health ministry reports 379 Palestinians were killed amid two months of a tenuous ceasefire. Israel has fiercely denied accusations of genocide, saying its military campaign is self-defense. 

For some, the question of whether Israel committed a genocide has been settled. As a legal matter, whether Israel is guilty of the crime lies with two international courts.

Israel was accused of committing genocide in one of these courts, the International Court of Justice. It formally denied the charge. Moving forward, the court must measure Israel’s actions against the narrow legal definition of genocide — which is characterized not by the magnitude of violence, but by the intent to destroy a people.

Presiding Judge Nawaf Salam reads the ruling of the International Court of Justice, or World Court, in The Hague, Netherlands, May 24, 2024, where the top United Nations court ruled on South Africa’s request for judges to order Israel to halt its military operations in Gaza and withdraw from the enclave. (AP)

Israeli officials have described Hamas’ Oct. 7 attack as an attempted genocide but have not pursued a case in the International Court of Justice. 

Here’s a guide to a complex legal process that is likely to take years.

How does the U.N. define and determine genocide?

The most widely accepted definition of genocide comes from a 1948 United Nations treaty often called the Genocide Convention. 

Most of the U.N.’s 193 member states have agreed to the Genocide Convention, including the U.S. and Israel. As parties, states agree to punish the crime of genocide, and to prevent it from occuring. This makes acknowledging a genocide, even one happening elsewhere, politically fraught and legally complicated.  

The treaty defines genocide as killing, causing serious mental or bodily harm, preventing births, inflicting life-threatening conditions, or forcing the transferral of children "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."

The crime hinges on intent and the type of targeted group, not a death count. 

This distinguishes genocide from crimes against humanity, which refer to large-scale attacks against civilian populations, regardless of intent or the makeup of the group. 

"Genocide can be spectacular or it can be quiet," said Shannon Fyfe, an international criminal law expert at Washington and Lee University.

Killing members of a group is horrific but "not necessarily genocide," unless it is done with an intent to destroy the group, said Sara E. Brown, a genocide scholar and regional director at the American Jewish Committee.

That can put the legal process out of step with public opinion, as people around the world see images of starvation and suffering and come to their own conclusions.

The decision to use the term genocide is further complicated by its gravity and history, especially for Jewish people; the state of Israel was created as a response to the Holocaust, said Omer Bartov, a Brown University Holocaust and genocide studies professor. "There is also a sense among critics of Israel that they may be tarred with allegations of antisemitism."

International court rulings on genocide are rare and take years

Two major courts can determine a genocide happened: the International Court of Justice and the International Criminal Court. 

Historically, final rulings take years, and neither court has issued a genocide ruling during a conflict. 

"The hole in the heart of international law is that it doesn't have its own army. It doesn't have its own police," said Michael Lynk, a Western University law professor and former U.N. human rights expert on the Palestinian territories. "It depends upon international cooperation and international political resolve in order to be effective."

There are 15 elected ICJ judges from U.N. member nations. The ICC has 18 elected judges from the court’s member countries. 

Since it was established in 1945, the International Court of Justice has acknowledged one event as a genocide, the 1995 killing of Bosnian Muslims in Srebrenica. The court, sometimes called the World Court, did not find that Serbia committed the genocide, but that Serbia violated the Genocide Convention by failing to prevent or punish that genocide. 

That ruling came in 2007, 12 years after the events.

Bosnian Muslim refugee Sida Mehinovic displays photographs of her loved ones who were killed in 1995 when Bosnian Serb forces took the enclave of Srebrenica, in her room in the Bosnian village of Slavinovici, on Feb. 25, 2007. (AP)

The ICJ has issued one other ruling on genocide involving Croatia and Serbia, but did not find a genocide had occured. 

There are at least three cases alleging violations of the Genocide Convention pending before the ICJ: Gambia v. Myanmar (filed in 2019), Ukraine v. Russia (2022), and South Africa v. Israel (2023).

The International Criminal Court, meanwhile, has issued an arrest warrant for genocide once. This court is younger than the ICJ, established in 2002 to investigate and prosecute people — not countries — for four crimes: genocide, war crimes, crimes against humanity and aggression. 

It issued the genocide arrest warrant in 2010 against then-Sudan President Omar al-Bashir for alleged crimes committed in Darfur, Sudan, but there has been no trial. (Sudan, which is not one of the ICC’s 125 members, has not turned him over.)

The International Criminal Court, as seen in The Hague, Netherlands, Dec. 9, 2025, prosecutes people for serious international crimes such as genocide and war crimes. (AP)

The U.N. has also created international criminal tribunals for conflicts in Rwanda and the former Yugoslavia. The Cambodian government established a special tribunal in 2006, with U.N. support, to prosecute former Khmer Rouge officials for crimes in the late 1970s. 

These tribunals convicted people of the crime of genocide, but often not until several years after each conflict.

International legal institutions typically recognize genocides only after a targeted group has been largely destroyed and suffered irreparable harm, wrote the Israeli human rights organization B’Tselem in a July report. 

Months before the ceasefire, groups such as B’Tselem, Amnesty International, Human Rights Watch, Physicians for Human Rights Israel and the International Association of Genocide Scholars described Israel’s actions as a genocide as they pressured Israel to increase the flow of aid into Gaza and end its military campaign.   

Although there is a ceasefire, Israel continues to kill Palestinians in Gaza and restrict food and other supplies from reaching the region, B’Tselem spokesperson Yair Dvir said. 

"The just demand for recognition of the genocide Israel committed in Gaza and for bringing those responsible to justice remains valid and stands now as well," Dvir said.

Israel’s intent is key to a genocide ruling

Eventual rulings on Israel’s conduct in the war in Gaza would hinge on the question of intent. 

"It’s the linchpin," said Brown. "Determining intent is what makes a genocide, a genocide."

By requiring an "intent to destroy," the Genocide Convention’s drafters aimed to distinguish genocide from the type of military attacks that led to mass civilian deaths in World War II, said A. Dirk Moses, City University of New York international relations professor.

Nailing down direct evidence can be challenging. "Unless people are diligently sharing their state-of-mind while they are making plans with collaborators, or they are oversharing on social media, it can be hard to know what someone intended to do without reading their mind," Fyfe said. 

The ICJ also allows for intent to be inferred from a pattern of behavior, but that standard is hard to meet. Genocidal intent must be the "only reasonable inference," Fyfe said.

A state may claim to be doing something else, such as acting in self-defense or as part of an existential war, Bartov said. If there is another reasonable explanation for a state’s action, it may be able to avoid the charge of genocide.

The other time the ICJ ruled on genocide allegations came after Croatia and Serbia accused one another of committing a genocide during the 1991-95 war. The ICJ found evidence on both sides of killing members of a group and causing serious bodily harm but did not establish intent, and therefore did not declare either event a genocide. 

Some genocide scholars and human rights organizations have said there is evidence of an "intent to destroy" the people of Gaza. 

In September, an investigation by an independent U.N. commission found there was both direct evidence of intent in the form of statements by Israeli officials and a pattern of conduct from which the "only reasonable inference" was genocidal intent. The report cited Israel’s killing of tens of thousands of Gazans, withholding aid and not allowing Palestinians to leave the Gaza Strip, and it accused Israel of targeting health care facilities and children. Israel rejected the report. Officials have said attacks on hospitals targeted Hamas’ infrastructure and denied deliberately targeting children.

The commission itself does not speak for the U.N., but its assessment may be used in future legal proceedings, Lynk said. 

Other genocide scholars, advocacy groups and Israeli officials say it is not appropriate to use the term "genocide" to describe Israel’s actions in Gaza. 

Critics of that label say Israel’s military actions are a defensive response to Hamas' attack, and Israel aimed to reduce civilian casualties, warned Palestinians of incoming attacks and allowed some humanitarian aid across the border.

Others say warnings were sometimes inaccurate and insufficient, and with so much of the infrastructure destroyed, there was nowhere left to flee. Israel blocked humanitarian aid for several months at a time.

After an Israeli hospital strike killed at least 20 people including journalists in August, Israeli Prime Minister Benjamin Netanyahu reiterated Israel’s focus: "Our war is with Hamas terrorists. Our just goals are defeating Hamas and bringing our hostages home."

Smoke rises from an Israeli strike in Gaza City on June 1, 2025. (AP)

Where do the international cases involving Israel, Hamas stand?

In December 2023, South Africa formally alleged to the ICJ that Israel was committing genocide in Gaza. 

Israeli officials called the accusation baseless in court. 

After a preliminary hearing in January 2024, the ICJ allowed South Africa’s case to move forward and ordered Israel to take provisional measures — allowing humanitarian aid, punishing incitement to genocide and preserving evidence — while it’s pending.

Months later, the court issued more measures concerning aid and military action, several of which Israel ignored. Israel has submitted at least two reports of its efforts to comply.

In November 2024, the International Criminal Court issued arrest warrants for Netanyahu and then-Israeli Defense Minister Yoav Gallant for crimes against humanity and war crimes. The ICC also issued an arrest warrant for a Hamas military leader, who has since been killed.  

The U.S. and Israel aren’t members of the ICC, and President Donald Trump has defended Israel, issuing an executive order in February that imposed sanctions on the court. Netanyahu and Gallant could be arrested while visiting ICC member countries. 

The U.N. Security Council could pass a resolution declaring a genocide, but it’s unlikely. Permanent members of the Security Council, including the U.S., have veto power. Before the current ceasefire agreement, the U.S. vetoed multiple resolutions demanding a ceasefire. 

Israel has until March 12 to file a written rebuttal to South Africa’s ICJ claims; that deadline has been extended twice. More substantive court hearings aren’t expected until late 2026 or 2027.

A final ruling isn’t possible until after that.

PolitiFact Researcher Caryn Baird contributed to this report.