The world is repeatedly being told that Israel has committed genocide in Gaza.
The accusation is routinely presented not as an allegation to be proved, but as an established fact. And one of the most persistent claims used to bolster it is that the International Court of Justice has already ruled that Israel is committing genocide.
It hasn’t.
In its January 2024 order, the ICJ was considering South Africa’s request for provisional measures, not deciding the merits of its genocide case against Israel. The Court found that Palestinians in Gaza had a plausible right to protection from acts of genocide and imposed binding provisional measures while the case proceeded. It did not find that Israel had plausibly committed genocide, much less rule that genocide had actually occurred.
Joan Donoghue, former President of the International Court of Justice, clarified on air with @BBCNews that the court did *not* decide that Israel’s war against Hamas in Gaza could plausibly be considered genocide. pic.twitter.com/oz1lOCUMD6
— HonestReporting (@HonestReporting) April 26, 2024
Which brings us to an interesting admission from an unlikely source.
Newsweek has just published an op-ed by Faisal Kutty, a lawyer and professor of law at Southwestern Law School who has publicly promoted the argument that Israel’s conduct in Gaza constitutes genocide.
His Newsweek piece contains plenty with which Israel and its supporters would strongly disagree. Yet on one crucial point, Kutty acknowledges something that seems to escape countless activists, commentators and journalists: whether Israel has committed genocide remains an unresolved legal question.
Lawyers, scholars and governments have spent nearly three years arguing over whether Israel’s conduct satisfies the legal definition of genocide. The argument matters. Genocide has a precise legal meaning, and the International Court of Justice (ICJ) has not yet decided the merits of South Africa’s case against Israel.
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So perhaps another question belongs alongside the legal one: What if it isn’t genocide?
Genocide is not a synonym for mass killing. Under the 1948 Genocide Convention, specified acts must be committed with the intent to destroy, in whole or in part, a protected group as such. Israel denies that intent, maintaining that it is fighting Hamas after the atrocities of October 7, not seeking to destroy Palestinians as a people. Skeptics also cite Hamas’ conduct in civilian areas, alleged use of human shields, the hostages and the realities of urban warfare. Their central legal point is serious. Even an appalling civilian death toll does not, by itself, establish genocidal intent.
To understand the weight of this concession, one must look at Kutty’s record. He is no neutral commentator; he routinely posts anti-Israel content on social media, including the below with, not one, but two, antisemitic tropes:
This is not a writer inclined to give Israel the benefit of the doubt.
If even he can acknowledge that the ICJ has not ruled Israel committed genocide – and may ultimately find that genocidal intent was not proven – what excuse is there for journalists who continue to present that claim as settled fact?
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© Divuach Ne’eman R”A, 2025
