Israel refutes genocide accusation by releasing cabinet decisions

Israel has released more than 30 secret orders from government and military leaders that it says refute charges that it committed genocide in Gaza and instead demonstrate Israeli efforts to reduce deaths among Palestinian civilians.

The release of the documents, copies of which were reviewed by The New York Times, follows a petition to South Africa's International Court of Justice, which has accused Israel of genocide. Much of the case in South Africa hinges on inflammatory public statements by Israeli leaders that they say are evidence of intent to commit genocide.

Part of Israel's defense is proving that whatever politicians have said publicly was overruled by executive orders and official orders from Israel's War Cabinet and the Army's High Command.

The court, the UN's highest judicial body, began hearing arguments in the case this month and is expected to issue an initial response to South Africa's petition – in which it could call for a temporary ceasefire – as early as Friday -fire.

Since October, Israel has bombarded Gaza in a campaign that Gaza health officials say has killed more than 25,000 Gazans, or about one in 100 of the territory's residents; nearly two million people displaced; and damaged the majority of buildings, the UN said. The campaign is in response to a Hamas-led attack that Israeli officials say led to the deaths and kidnappings of about 1,400 people in Israel.

The 1948 Genocide Convention, which South Africa has accused Israel of violating, does not define genocide solely as the killing of members of a particular ethnic or national group. Crucially, it says the killings must be committed 'with the intention of destroying that group'.

“It all depends on the intention,” says Janina Dill, professor at the University of Oxford and co-director of the Oxford Institute for Ethics, Law and Armed Conflict.

To that end, both South Africa and Israel are focused not only on what leaders and soldiers have done, but also on what they have said. The roughly 400-page defense includes what Israel says is evidence that it sought a legal war with Hamas and not a campaign of genocide against the Palestinians.

Among the declassified Israeli documents are summaries of cabinet discussions from late October, in which Prime Minister Benjamin Netanyahu ordered aid, fuel and water to be sent to Gaza. He also instructed the government to investigate how “external actors” could set up field hospitals to treat Gaza residents, and to consider docking a hospital ship off the territory's coast.

According to the released documents, Netanyahu's most explanatory statements were made in November.

“The Prime Minister emphasized again and again the need to significantly increase humanitarian assistance in the Gaza Strip,” reads a declassified document that Israeli lawyers say comes from the minutes of a Nov. 14 cabinet meeting.

“It is recommended to respond positively to the US request to allow fuel access,” another document said.

According to declassified minutes of another meeting, on November 18, Mr. Netanyahu emphasized “the absolute necessity” to continue basic humanitarian assistance.

But the file has also been very carefully compiled and omits most of the war instructions from the cabinet and the army. The available documents do not include orders from the first 10 days of the war, when Israel blocked aid to Gaza and cut off access to the electricity and water it normally supplies to the territory.

Although it may take years before the court reaches a decision, it may want to impose 'provisional measures' as early as this week. These measures could include a symbolic – and largely unenforceable – request for Israel to halt its attacks while the court deliberates.

To do this, the court's 17 judges must find it plausible that Israel murdered Gaza residents with the deliberate aim of destroying Palestinians as a group, international legal experts said.

Actions that could constitute genocide can be “hallmarks of war without being genocide,” Professor Dill said. “So it is really necessary to show this intention.”

The Israeli cabinet's decisions could prove more relevant in a few months, when the court will consider the merits of the case. The judges will have to decide whether Israel had no other motive besides genocide to kill Palestinians, the experts said.

But at the current stage of “provisional measures,” the experts said, the judges only need to be convinced of the plausibility of the South African claim to instruct Israel to suspend its campaign.

South Africa has attempted to prove genocidal intent by citing more than fifty comments and statements made since October by Israeli leaders, lawmakers, soldiers and commentators.

Those cited include Yoav Gallant, Israel's Defense Minister, who said Israel was fighting “human animals”; Amichay Eliyahu, the Minister of Heritage, who proposed dropping an atomic bomb on Gaza; the country's largely ceremonial president, Isaac Herzog, who described the Palestinians as “an entire nation in charge”; And Ghassan Alianthe Israeli general who oversees aid distribution to Gaza.

Israel has also submitted to the court a handful of emails between military officers and aid workers, showing the country's efforts to provide Gaza with food, medicine and vaccinations. If Israel pursued the wholesale destruction of the Palestinian population in Gaza, the Israelis argue, it would not cooperate with the UN to distribute life-saving aid.

One email, from a senior UN official to an Israeli officer overseeing aid distribution to Gaza, included a detailed approved request to deliver solar-powered refrigerators to the territory to store vaccines and laboratory tests. A UN official confirmed the messages were authentic.

International legal experts said the secret orders and emails provided important context but the court would consider them as part of a broader picture.

Israel's submission included just some of the decisions taken by the cabinet and military leadership since October. The judges will have to assess whether or not the dossier tells the whole story of Israeli plans, said William A. Schabas, professor of international law at Middlesex University in London, and author of “Genocide in International Law.”

“If you're trying to prove that you didn't give orders to do something, then obviously you're going to show orders that indicate otherwise,” Professor Schabas said. “And if there's an order to do something or a plan to do it, you're not going to give it.”

Orders to provide sufficient humanitarian aid to Gaza should also be judged by what Israel has actually allowed to happen on the ground, Professor Schabas said.

“Things that appear to be aimed at sustaining life do not necessarily disprove the opposite,” he said.

For example, the United Nations recently accused Israel of blocking aid to northern Gaza, an accusation that Israel denied. The UN has also warned of a looming famine amid food shortages and the collapse of Gaza's healthcare system.