B’Tselem’s flawed report on Gaza names genocide but evades the law

On July 28, 2025, the reputable Israeli human rights organization B’Tselem published an eighty-eight-page report entitled Our Genocide, in which it accuses the State of Israel of perpetrating genocide in Gaza. While the report’s potential significance—particularly in shaping both international and domestic public opinion—remains undeniable, the widespread acclaim it has received warrants critical scrutiny. This is due not only to the protracted delay of over twenty months before B’Tselem adopted the term “genocide,” well after numerous international organizations (such as Amnesty International and Human Rights Watch) and Palestinian human rights groups (including the Palestinian Center for Human Rights and Al-Haq) had already done so, but more fundamentally to the rhetorical and analytical strategies deployed throughout the report.

To be sure, the report is noteworthy in that it situates the ongoing genocide in Gaza within a broader historical framework shaped by a settler-colonial logic of elimination. However, on page 12, it states:

The [Genocide] Convention’s definition emphasizes the centrality of intent to destroy a group as such… Genocide requires a specific intent (dolus specialis) to destroy the group in whole or in part, and each of the acts defined in the Convention qualifies as genocidal only if committed with that intent. International tribunals dealing with cases of genocide or suspected genocide have ruled that intent can be inferred not only from official documents and statements … but also from the pattern of conduct of the state or of forces perpetrating the crimes, if such intent is the only inference that can reasonably be drawn from that conduct. There is an inherent gap between the legal and the historical analysis of genocide. The legal definition is narrow, having been shaped in large part by the political interests of the states whose representatives drafted it. From a historical perspective, violent destruction of groups in both the distant and recent past has occurred in a wide variety of ways, many of which do not align with the stringent legal definition.” (emphasis added)

The report continues:

The case of Israel and Gaza illustrates this problem: while the legal debate over whether Israel is committing genocide in the Gaza Strip is both important and necessary, there is a critical gap between the amount of time it will take the formal legal institutions deliberating on the issue, chiefly the International Court of Justice, to issue binding decisions. (emphasis added)

Both observations are, in themselves, correct. Scholars such as Dirk Moses have long argued that the narrow legal construction of genocide has obscured the recognition of colonial violence as genocidal, by recasting it in the language of security imperatives. Likewise, it is true that proceedings before the International Court of Justice can take many years. But these observations cannot be instrumentalized to justify deferring—or avoiding altogether—a clear and unequivocal acknowledgment that what is occurring in Gaza constitutes genocide in the legal sense. Yet that is precisely what the report does. As the authors themselves note, the report “relies on the legal definition of genocide as outlined in the UN Convention, but adopts a broader analytical framework, drawing on Raphael Lemkin’s original conception as well as historical and sociological research” (emphasis added). While the broader historical and sociological dimensions are unquestionably important—particularly in framing the current genocide as part of a longer trajectory of settler-colonial elimination—they are, in this context, deployed in a manner that avoids direct engagement with one of the core elements of the crime of genocide.

To sustain this maneuver, the report invokes a distinction between genocide as a legal category and genocide as a broader historical or sociopolitical phenomenon. In making this move, the report draws an analogy to the occasionally cited distinction between apartheid as a political regime that contravenes the legal prohibition against racial discrimination and apartheid as a crime under international law. Yet this analogy is misapplied. In the case of apartheid, international legal instruments—such as the Rome Statute for the International Criminal Court and the International Convention on the Suppression and Punishment of the Crime of Apartheid—explicitly establish this distinction: the crime of apartheid requires not only the existence of a racialized system of domination but also the commission of specific inhumane acts to establish or to sustain that system. It is therefore hypothetically conceivable to speak of an apartheid regime that does not meet the legal threshold for the crime of apartheid.

Applying this logic to genocide, as the report appears to do, serves a distinct function: it seems intended to avoid engaging directly with the core element of the crime—namely, the intent to destroy. It is therefore unsurprising, given the drafters’ decision to adopt the regime approach, that a report of such scope and length fails to include a dedicated section on genocidal intent, the foundational element of the crime under international law. Instead, it places disproportionate emphasis on incitement to genocide, thereby deflecting attention from the stringent evidentiary threshold required to substantiate intent. This is not a marginal omission; it reflects a deliberate rhetorical strategy of considerable significance.

Consider, by contrast, the approach taken in Amnesty International’s report on the genocide in Gaza, which includes a section and a multi-layered analysis dolus specialis and concludes that Israel’s actions meet the legal definition of genocide without attempting to reinvent established jurisprudence. In fact, the B’Tselem report refers rather hastily to the element of intent, asserting that it “emerges unequivocally,” yet without engaging the issue in any serious or substantive manner. Instead, it outsources the task to Amnesty International’s report, which it cites as providing a “thorough legal examination of this issue.” The result is the impression that B’Tselem is attempting to have it both ways: on the one hand, it embraces a regime-based analysis that allows it to sidestep a sustained engagement with the special intent requirement—an essential legal element for establishing state responsibility for genocide under international law; on the other hand, it appears uneasy about ignoring the issue entirely, especially given that the report explicitly relies on the legal definition of genocide in its analysis, and thus gestures toward other reports to fill the gap.

By proceeding in this manner, B’Tselem fails to meet the principal task confronting those engaged in international accountability efforts: namely, to contribute meaningfully to the consolidation of the ICJ case and any future legal proceedings by advancing the debate on the central legal issue—the existence of special intent.

One could argue that the empirical and historical analysis presented in the report indirectly supports the establishment of genocidal intent, insofar as it demonstrates that such intent is the only reasonable inference to be drawn from Israel’s sustained pattern of conduct on the ground. But the question remains: Why continue to circle around the issue rather than confront it directly and unequivocally? Why not align with the efforts of Amnesty International and other legal scholars who argue—at length and with rigor—that within the existing legal framework, Israel’s actions unequivocally demonstrate an intent to destroy? If states such as Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom, in their joint declaration in The Gambia v. Myanmar, affirmed that existing law—when properly interpreted—permits a ‘balanced approach that recognizes the special gravity of the crime of genocide without rendering the threshold for inferring genocidal intent so difficult to meet,’ and further emphasized that ‘acts committed against children can play an important role in determining specific intent,’ then why cannot B’Tselem actively promote a similar interpretive stance? Why perpetuate discourses that foreground the gap between legal definitions of genocide and its socio-historical manifestations?

Unintentionally or not, B’Tselem ultimately undermines its own conclusion—that “the Israeli regime has been responsible for carrying out genocide against the Palestinians in the Gaza Strip”—by asserting early in its analysis that “the legal debate over whether Israel is committing genocide in the Gaza Strip is both important and necessary.”

This rhetorical maneuver risks diluting the force of the report’s conclusion, effectively relegating it to a primarily historical or sociological register, rather than advancing a clear, rigorous, and unequivocal legal argument that Israel’s actions constitute a textbook case of genocide.