On May 24th, the International Court of Justice (ICJ) issued its latest ruling1 in a proceeding against Israel alleging that its management of the current war in the Gaza Strip violates the Genocide Convention.2 The ruling ordered Israel to "halt its military offensive, and any other action in the Rafah Governate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part."3 Upon issuance of the order, five members of the 17-judge panel publicly debated whether it required Israel to implement a unilateral ceasefire or merely avoid acts of genocide.
The ICJ's May 24th action is a modification of the court's provisional order of January 26th, leaving undetermined for now the ultimate question of whether Israel is committing acts of genocide. In addressing that issue, it appears that the ICJ plans to consider, most significantly, the number of Palestinians killed in the war. The following review of the situation indicates that Hamas has manipulated the figures to incriminate Israel.
The court's January 26th order said, "While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed."4 That statement is disturbing. Aside from the compelling question of whether, whatever the numbers, sheer quantity is probative of a specific intent to commit genocide, if the wartime casualty figures cannot be independently verified -- and given that they have been promulgated by the Gaza Ministry of Health (MOH), an agency under the control of the Hamas terrorist organization -- how can the ICJ accurately determine how many Palestinians have died?
Military experts warn it is nearly impossible to accurately count the number of casualties during a war, especially one fought in a complex, densely populated, urban, and subterranean battleground like Gaza.5 They say the casualty counts published by Hamas are not credible.
In past wars, the UN applied standards of casualty verification. But in the Gaza war, the world body has relied solely on Hamas's casualty counts. Hamas is not only biased as a party to the Gaza conflict. Its foundational goal is to destroy Israel and exterminate all Jews, in part by waging war and terrorism in disregard of the UN's own standards and in part by spreading extremist propaganda. The trustworthiness of Hamas's mortality records is also undercut by its use of human shields. The fundamentalist regime deliberately places Palestinian civilians in the line of fire and blames Israel for any resulting harm.
Hamas's casualty figures are also suspect for more specific reasons. The two Hamas agencies responsible for counting casualties -- the MOH and Government Media Office (GMO) -- have reported wildly different casualty sums. Both agencies refuse to disclose their body-counting methodology. They also decline, in a manifest effort to hide the number of fallen Hamas fighters and to overstate the number of civilian casualties, to distinguish between combatants and noncombatants.
Similarly, they mask the harm caused to women and children by their own terrorist operations. They do not identify Palestinians killed by their operations (e.g. misfired rockets, accidental explosions of home-made devices, and deliberate killings of civilians who disobey the terrorists' commands). And they do not itemize deaths from non-combat factors such as disease and natural causes. Starting in November, as Gaza's morgues closed and thereby left fewer places to count corpses, Hamas increasingly made its casualty pronouncements even more questionable by basing the numbers on unidentified "media sources."
Expert analysts call Hamas's mortality ledger illogical on its face.6 For example, Hamas's sequence of death totals rises too consistently to be real. In addition, the daily number of deceased women and children is unrealistically represented as 70% of each day's total death toll. Equally odd, the computations assume virtually no deaths of civilian men.
On May 6th, the UN Office for the Coordination of Humanitarian Affairs (OCHA) changed its policy for tracking deaths in Gaza. The UN agency switched from the GMO numbers to the MOH numbers7 and stopped reporting Hamas's 70%-per-day figure. As a result, OCHA effectively admitted that within the scope of 34,900 deaths then reported by Hamas, only about half the number of casualties attributed to women and children could be confirmed as actual casualties. The remaining individuals could not be "fully identified," said OCHA, because they were missing. A missing person may not be a dead person. Thus, the agency's drastic cut in the confirmed body count left the total body count more suspicious than ever.
According to Israel's casualty estimates, as of May 16th 16,000 civilians and 14,000 Hamas fighters have died.8 While every death of a civilian in warfare is a tragedy, such a low ratio of civilian-to-combatant deaths in urban warfare is unprecedented.9 Moreover, which should go without saying, the fact of civilian deaths does not address the question of which party is the belligerent that is ultimately responsible for these deaths. Beyond that, Israel's casualty ratio is more relevant to the issue of genocide than Hamas's total casualty count because the ratio indicates Israel is validly attacking Hamas, not the Palestinian people. Had Israel genuinely planned to eliminate Gaza's entire, two million-plus population, its advanced weaponry could have taken far more lives by now than even the questionable number of 34,900.
Even after OCHA second-guessed Hamas's mortality measures of women and children, the agency and much of the media have continued to parrot Hamas's gross tallies of mortality while ignoring the Israeli statistics. Many journalists have shown the same pro-Hamas bias.10 In recent days, we have seen a reiteration of this phenomenon as the media and various officials have blandly cited Hamas claims as to the number and nature of deaths arising from Israel's rescue on June 8th of four of the hostages taken on October 7th.
All ICJ judges swear to perform their duties "honourably, faithfully, impartially and conscientiously."11 The ICJ has already recognized that Hamas's casualty math cannot be independently verified. OCHA has tacitly acknowledged the weakness of the numbers. Other circumstances suggest the data is both unreliable and prejudicial. Accordingly, the court should deem the evidence inadmissible and without probative value to the claims that Israel is engaged in genocide.
1 Order, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), May 24, 2024,
https://www.icj-cij.org/sites/default/files/case-related/192/192-20240524-ord-01-00-en.pdf (the "May 24th Order").
2 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, https://ihl-databases.icrc.org/en/ihl-treaties/genocide-conv-1948.
3 May 24th Order, p. 15. Article II of the Genocide Convention defines genocide as: "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group."
4 Order, International Court of Justice, Document Number 192-20240126-ORD-01-00-EN, January 26, 2024, https://www.icj-cij.org/node/203447.
5 JINSA, "The October 7 War: Observations, October 2023 - May 2024," May 30, 2024, p. 34, https://jinsa.org/policy-projects/gaza-assessment/?tab=reports.
6 See, e.g., Tablet, "How the Gaza Ministry of Health Fakes Casualty Numbers," March 6, 2024, https://www.tabletmag.com/sections/news/articles/how-gaza-health-ministry-fakes-casualty-numbers;
Washington Institute, "Here's the Real Problem with the U.N.'s Revised Gaza Death Toll," May 24, 2024, https://www.washingtoninstitute.org/policy-analysis/heres-real-problem-uns-revised-gaza-death-toll.
7 OCHA ReliefWeb, "Gaza War: UN revises death toll for women and children," May 17, 2024, https://reliefweb.int/report/occupied-palestinian-territory/gaza-war-un-revises-death-toll-women-and-children#:~:text=The%20death%20toll's%20accuracy%20remains,was%20provided%20for%20these%20numbers.
8 Jewish News Syndicate, "Israel releases new Gaza death toll, claims historically low civilian deaths," May 16, 2024, https://www.jns.org/israel-releases-new-gaza-death-toll-claims-historically-low-civilian-deaths/.
9 John Spencer, "Israel Has Created a New Standard for Urban Warfare. Why Will No One Admit It?" Newsweek, March 25, 2024, https://www.newsweek.com/israel-has-created-newstandard-urban-warfare-why-will-no-one-admit-it-opinion-1883286.
10 See, e.g., Associated Press, "Houthi rebels say at least 16 killed and 42 others wounded in joint US-British airstrikes in Yemen," June 1, 2024, https://apnews.com/article/yemen-war-us-british-airstrikes-israel-hamas-12f99b7afc389a703f8dd333f2376b20 (reporting 36,000 deaths in Gaza); BBC, "Biden unveils Israeli proposal to end Gaza war," May 31, 2024, https://www.bbc.com/news/articles/cw8860gn1nwo (also reporting 36,000 deaths in Gaza).
11 International Court of Justice, Rules of Court (1978), Part I, Section A, Subsection 1, Article 4, https://www.icj-cij.org/rules
