Is it legally plausible that Israel could be guilty of genocide against Palestinians?

Question

A recent article from the Anti-Defamation League states (without citing any sources or providing any evidence):

Genocide is a legal term, and in no way do Israeli policies and actions meet this legal threshold. [...] While one may oppose and even condemn particular Israeli policies or actions with regard to Palestinians or Israel’s Arab citizens, the fact remains that in no way has Israel engaged in any action with the intent to exterminate, in whole or in part, the Palestinian people.

To the contrary, an older piece from the Center for Constitutional Rights demonstrates that:

Prominent human rights advocates and scholars have argued that the killings of Palestinians and their forceful expulsion from mandate Palestine in 1948, the Israeli occupation of the West Bank, East Jerusalem, and Gaza, and the violence and discrimination directed at Palestinians by the Israeli government have violated a number of human rights protections contained in international human rights law, genocide being among them.

Given that intent is often hard to prove but an important part of the legal definition of genocide, I will mention that this article includes quotes from Israeli officials on pp. 8-9 that seem to demonstrate such intent explicitly.

Has there been any formal legal process examining this general question in a relevant court? Are there compelling arguments in Israel's defense that directly address the kinds of evidence included in the CCR piece?

Answer 1

An individual might be prosecuted for genocide, a country cannot be. For example, Jean-Paul Akayesu, Jean Kambanda, Ratko Mladic, Radovan Karadžic, Nicolae and Elena Ceaușescu, Hissène Habré, Khieu Samphan were convicted in various courts of genocide, for their individual culpability. Omar al Bashir was accused of genocide w.r.t. Darfur, but that matter is still pending. This could give you a baseline for comparing known cases of genocide convictions to a hypothetical prosecution of some other individual, although the Ceaușescus were tried in local court after the overthrowing of their dictatorship, and were not tried by an international tribunal (likewise Alfons Noviks after the liberation of Latvia). Any such trial would be very fact-intensive, and there has been no formal inquiry either into Hamas or Israel, or individuals on either side.

Answer 2

While Genocide is defined as a crime, and crimes require human defendants, certainly a nation can be de facto guilty of a crime. No one discussing the Turkish Armenian Genocide today is very concerned about exactly which members of the Turkish government did what; Turkey is seen as the offending party, and this is a fairly decided result (at least outside of Turkey) without benefit of trial.

As such, all the two sourced links show is that assertions with backing evidence are stronger than those without. The second link certainly shows that it is plausible that Israel as a nation intentionally participated in acts that could be defined as genocide. As a crime, such participation would be adjudicated in court, not across website links. Such a trial would be against specific individuals, not against the state as a whole. The de facto guilt of Israel will likely be determined by historians and politicians, not courts.

Answer 3

The International Criminal Court is not the only avenue for trying persons under international law. Since the other answers so far have dealt with that aspect, I attempt to describe in addition to that.

States have previously submitted their claims against other states for their acts of genocide before the International Court of Justice.

Jurisdiction of the ICJ

The ICJ has ruled in the cases of Bosnia v. Herzegovnia, Croatia v. Serbia and the recently instituted Gambia v. Myanmar that it has the jurisdiction to deal with cases arising under the Genocide convention. Israel has signed and ratified the Genocide Convention without any reservations.

While the ICJ normally exercises jurisdiction on the basis of specific consent of both parties involved, in the above cases, jurisdiction was imposed on the basis of Article IX of the Genocide Convention of 1948, which allows the court to be referred a case under the Convention for the act of Genocide and those related to it under Article III. This is regardless of the state consenting to ICJ's general jurisdiction and allows the court to effectively rules on state's commission of genocide.

The Genocide Convention and rules of state responsibility

Whether Israel has committed an act of genocide would depend upon the act of genocide being defined under the definition of the convention or under customary international law, basis the submission to the court on consent principles or Article IX of the Convention. Assuming that it refuses to consent, and a conscientious state with or without the help of intergovernmental parties brings forth a dispute, the Genocide convention's definition would have to be satisfied by the applicant(s) before the court.

The first is the physical element, namely the acts perpetrated (which are set out in Article II and include, in particular, killing members of the group (subparagraph (a)) and causing serious bodily or mental harm to members of the group (subparagraph (b)). The second is the mental element, namely the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.

The discussion before the court would likely depend on the rules of state responsibility as applicable to the crime of Genocide, which due to being considered a "jus cogens" violation has a higher degree of accountability on states and a lesser degree of exceptions being afforded to them.