What Amnesty got wrong about the Gaza ‘genocide’ – Part 1

The crime of genocide is universally recognised as one of the most heinous if not the single most atrocious crime that can be committed. It is therefore not by accident, but rather by design, that such a crime should be notoriously difficult to prove.

In December Amnesty International (AI) published a 300-page report claiming to prove that Israel has committed the crime of genocide. In reference to Article II of the Genocide Convention the report attempts to demonstrate that Israel had killed, inflicted serious bodily or mental harm and deliberately engineered uninhabitable living conditions with the special intent of destroying the Palestinians in Gaza in whole or in part.

As a leading international human rights organisation we should expect AI to take that responsibility seriously and not make such a consequential assertion lightly, no matter how much its executives may want to believe it. Unfortunately, the report demonstrates complete one-sidedness as well as a shocking lack of honesty and objectivity on the part of AI when it comes to the state of Israel. Consistent with statements made by AI’s own local branch in Israel, it reads more like an indictment – in that guilt had been determined and all that was left was to prove it – rather than a good faith attempt to judiciously weigh opposing arguments, honestly evaluate the strength of the evidence and carefully arrive at a considered conclusion.

In this first part of a multi-part series, I examine the central arguments pertaining to the element of the crime of genocide of killing and inflicting serious harm. The criticisms presented are not meant to be comprehensive. In an application of Brandolini’s law (“it takes an order of magnitude more effort to refute nonsense than to produce it”) we may expect that it would take at least an equally long 300-page reply to satisfactorily address the collection of faulty logic, half-truths, omissions and outright falsehoods contained within the report.

Conversely, it should not be concluded that all accusations made by AI may be dismissed out of hand. However, I do claim that AI has demonstrably failed to substantiate its central charge and that the manner of its conduct should seriously caution anybody to trust AI’s accusations regarding Israel without independent analysis and fact checking.

Part I: Killings and serious injuries

There are fallacies of informal logic so frequently abused to confuse the audience in a debate that they have received special names. Argumentum ad ignorantiam – the argument from ignorance – is the attempt to prove a proposition by appealing to a lack of evidence to the contrary. But as the science communicator Carl Sagan eloquently explains: “absence of evidence is not evidence of absence”.

Nothing better summarises AI’s characterisation of the IDF air campaign. The report lists 15 airstrikes meant to show Israel was targeting non-combatants but provides no direct evidence – such as whistleblower testimony or leaked written orders, protocols or policy documents. Instead, AI relies on “trusted fieldworkers” (as the organisation has no personnel on the ground) to collect eye-witness testimony and photographic evidence from the sites. In each case the report states “Amnesty International did not find evidence of a military objective” (p. 107-110).

We find out very little about these fieldworkers and whether AI took any measures to ensure they were free to conduct truly independent inquiries in the totalitarian quasi-state that is Gaza where the governing authority is known for violently attacking, incarcerating and sometimes torturing critical journalists as well as summarily executing people suspected of collaborating with Israel – as AI frequently attests to.

But for charity’s sake let us assume that fieldworkers were trying to the best of their abilities to identify potential military targets and would have been able to notice remains of infrastructure in the rubble. (The report does not discuss whether this would be a realistic expectation, for example by comparing the analysed buildings to destroyed buildings with clearly visible weapons caches or tunnel entrances.)

In that case, to rule out the possibility of combatants being targeted AI depends on interviews with 74 Palestinians of which “66 were survivors and other witnesses and eight were relatives of individuals killed in the air strikes.” (p. 110)

Assuming the interviewed would have been aware of any Hamas presence in the building, AI apparently expects – indeed, relies exclusively on – the family, friends, neighbours and compatriots of people who have just been killed – many of them no doubt civilians – to reliably provide evidence exculpating the principal antagonist in the Palestinians’ own narrative of national liberation and the responsible party for their relatives’ death, all while the Hamas government had in past conflicts issued instructions to refer to any casualty as an “innocent civilian”.

Two months before AI issued its report, the Israeli newspaper Haaretz – not known for its pro-war or pro-government stance – published its own collection of interviews with Gazans in which it concluded: “For Gaza residents, the censorship of the identity of the dead Hamas members has created a complex situation, with clear unwritten rules. Several of them have told Haaretz that the enormous fear of these rules make their enforcement unnecessary. ‘There is fear of speaking in public about Hamas members, even ones who were killed, for many reasons’, said [one of the interviewed Gazans].”

One of the strikes in which AI found no evidence of a military objective hit the family home of a senior commander in the Islamic Jihad’s Al-Quds Brigade, Shaldan al-Najjar. His brother Suleiman spoke with AI and despite al-Najjar already having been targeted by the IDF in 2014 we are to believe that neither Suleiman nor the fieldworkers nor the AI researchers were able to put 2 and 2 together. Pretending as though these eye-witness accounts are anywhere near conclusive proof of the absence of military targets and therefore proof of deliberate killing of civilians is evidentiary malpractice.

At the same time, little to no room is given to the Israeli side of the story. AI acknowledges that Hamas uses human shields: “Amnesty International found that Hamas fired rockets from densely populated areas, including camps for displaced civilians. They operated from, or in the vicinity of, residential areas, including makeshift tented camps. Their fighters were present in schools and camps where internally displaced people were taking shelter, including places designated by Israel as ‘humanitarian zones’.” (p. 61)

Still, in cases where the IDF had commented publicly, such as the strike near Saint Porphyrius Church, where it said it was targeting a nearby Hamas command and control centre, those remarks are dismissed as “vague”, “general” and “unsubstantiated” (p. 110). Unsurprisingly, attempts to reach out directly to Israeli authorities for comment went unanswered. Indeed, amid a complex, multi-front war and faced with a sizeable manpower shortage we should hope that commenting on a presumptive hit piece by an organisation with a track record of antizionist propaganda would not be high up on the list of priorities. Additionally, any concrete evidence of a military target would most likely be classified intelligence and therefore not disclosed even in a direct reply.

Thus, without any hope of accessing the kind of information required to assess the presence of military objectives in any individual attack, an honest interlocutor might have devoted a small portion of the report to discussing IDF targeting procedures in order to gauge the likely prevalence of unlawful strikes – especially when trying to establish genocidal intent as the only reasonable conclusion. To do this, no communication with Israeli authorities would have been required, the procedures are a matter of public record.

For example, retired US Brigadier General Mark Kimmitt writes: “Disciplined militaries like the IDF are restrained by stringent rules of engagement imposed by policymakers and lawyers, which define how the military forces can and will fight. […] Such rules of engagement are most severe in governing the conduct of aerial bombardment.”

The most extensive investigative report into post-October 7 IDF practices to date found that tolerance for collateral damage may have increased compared to previous operations in Gaza – this is to be expected given that it was the first war with the goal of dismantling Hamas military capabilities. But the New York Times exposé certainly found no sign of indiscriminate bombings much less targeting civilians. On the contrary, it documents the IDF’s extensive, albeit imperfect, target selection and proportionality assessment procedures.

Worse yet, even if we grant that there were no valid military objectives, these strikes could have been made in error – be it due to deficient intelligence assessments or some other mistake – thus precluding criminal intent. The 300-page report dismisses this possibility almost categorically in only one line:

“It is not reasonable to suggest that these [airstrikes] could have been ‘mistakes’ when these were repeated many times over by one of the most technologically advanced militaries in the world. There is one reasonable inference that can be drawn from the evidence: these civilian deaths and injuries were intended.” (p. 122)

It is quite revealing that among 212 people interviewed for a report about an alleged genocide taking place against the backdrop of an extended war, not a single one of them is a military expert who could have provided context necessary to distinguish genocide from warfare. Among countless bibiliographic references there is only one citation to such an expert – Larry Lewis – to support the argument that the IDF did not expend sufficient effort to mitigate civilian harm (p. 207).

And while Lewis’s method for arriving at this conclusion is somewhat dubious (for example, he appears to assume that every single civilian casualty in Gaza died as a result of an IDF airstrike), even he admits: “Protecting civilians in Gaza is no easy task. Conducting military operations in the densely populated urban areas of Gaza while avoiding civilian harm poses immense challenges. Hamas hides within the civilian population and uses subterranean tunnels to move weapons and fighters. U.S. and coalition operations over the past twenty years show that even the most professional militaries, committed to compliance with international law, face real challenges mitigating civilian harm in conflict in similar or analogous urban settings, including in Iraq, Syria, and Afghanistan.”

In other words, the only military expert cited by AI directly contradicts its conclusions regarding incidental civilian harm. Other military experts agree with Lewis on this point.

William Arkin interviewing over a dozen IDF, US military and intelligence officials writes: “the number of Palestinian casualties, while high, does not appear to be disproportionate by the kind of measures used in international law: not in terms of the number of weapons used by Israel, the number of targets hit, the nature of Hamas or the unique features of the Gaza Strip, with its exceptionally high population density. U.S. military sources, many of whom are critical of much of Israel’s conduct, agree.”

John Spencer, one of the worlds leading experts on urban warfare, has written multiple op-eds describing the unique horrors of urban combat and comparing Israel’s conduct in war favourably to recent US-led campaigns against ISIS in Syria and Iraq while praising the IDF’s extensive measures to mitigate civilian harm in the face of unprecedented challenges.

Finally, it is worth noting that AI claims to have identified fragments of US-made aerial munitions only in 4 of the 15 strikes – one of them the Najjar family home. For another 2 of the strikes, the IDF took responsibility publicly. But for the remaining 9 cases AI presents no evidence that they were even the result of an Israeli bombardment, rather than misfired rockets by Palestinian terrorists. As the report admits:

“[Hamas] have also stored munitions in, and fired indiscriminate rockets from, civilian areas, endangering Palestinian civilians. Amnesty International has documented several incidents over the years in which rockets launched by Palestinian armed groups that misfired killed Palestinian civilians, including children, in Gaza.” (p. 55)

To be clear, I do not mean to suggest that in these 9 cases the casualties were in fact self-inflicted. I have no way of knowing this and given the much higher number of Israeli airstrikes it seems much more likely that they were actually the result of IDF activity. I mean only to demonstrate the argumentum ad ignorantiam fallacy governing AI’s reasoning – namely how easy it is to claim anything you like in the absence of any evidence.

A German version of this article first appeared on on the website of the Austrian think tank Mena-Watch.