By Leonardo Helman, JD Candidate, American University Washington College of Law ’27
Genocide never just happens; there is always a set of circumstances, whether naturally occurring or deliberately created, that allow genocide to transpire.[1] Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) requires there be a dolus specialis or “special intent” to commit genocide.[2] The Genocide Convention requires the presence of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” with an underlying crime or act demonstrating that special intent.[3]
In the absence of substantial evidence, like laws or policies demonstrating genocidal intent, the international community may be compelled to infer such intent. According to the International Criminal Tribunal for Rwanda (ICTR), “it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others.”[4] The International Criminal Court (ICC) has determined that genocidal intent can be demonstrated from the evidence through several factors that allow the inference of genocidal intent. [5] An important factor identified by the ICC is “the nature and extent” of violence committed against a civilian population.[6]
It is important to recognize the argument that if the international community delays action to prevent genocide until all elements of its definition are clearly identified, then the genocide may no longer be preventable.[7] Recognition of certain actions taken during a period of armed conflict can help identify situations trending towards the commission of genocide.[8] One key area that allows for quick identification of conflict trending towards genocide is an analysis of the treatment of child populations in the conflict area: “Children, as the conduits for the perpetuation of both the cultural and physical existence of the group, are an indispensable target for perpetrators of genocide.”[9]
While the forcible transfer of children from one population to another is perhaps one of the clearest underlying genocidal acts imagined in the Genocide Convention, the direct targeting of children in conflict zones can also indicate the intent to destroy, in whole or in part, a population.[10]
While rhetoric from Israeli officials throughout periods of conflict with various Palestinian groups has long included evidence suggestive of genocidal intent, actions indicating genocidal intent have certainly intensified in the last two years of armed conflict in Gaza, bolstering an argument of genocidal intent through the commission of the crime’s constitutive acts.[11] Since the attack on Israeli civilian populations conducted by Hamas and other Palestinian militant groups on October 7, 2023, Israeli security forces have engaged in a protracted campaign to, according to Israeli government officials, defeat Hamas and other militant groups and to secure the release of Israeli hostages held in Gaza.[12] Throughout the conflict in Gaza, thirty-one percent of the 60,000-plus Palestinians killed have been children, with tens of thousands of other children being injured and an average of ten children per day having lost one or both legs since the conflict began.[13]
The Human Rights Council’s Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel (the “Commission”), has noted that children in Gaza have been killed during evacuations, at shelters, while seeking aid at various distribution sites, and in areas within designated safe spaces for civilian populations.[14] Further, the Commission notes that children have been targeted with “direct gunshot and sniper wounds, often to the head and abdomen, indicating that the Israeli security forces intentionally targeted children during their military operations in Gaza.”[15] In all investigated cases, the children targeted by Israeli security forces were not a threat to the security of Israeli forces, as many of them were alone or with adults who were unharmed.[16] The Commission concluded that this widespread targeting of Palestinian children in Gaza is part of a “strategy to destroy the biological continuity and future existence of the Palestinian group in Gaza, thus part of the intent to destroy Palestinians in Gaza.”[17]
When obvious patterns of targeted violence emerge, clear inferences can be gleaned from the actions of those parties despite messaging to the contrary. Despite messaging insisting that Israel is not committing genocide in Gaza, evidence of systemic targeting of child populations by Israeli security forces suggests genocidal intent.[18] There exists a longstanding pattern observed by doctors and reporters on the ground in Gaza indicating clear targeting of children, belying the notion that Israeli armed forces are obeying the law.[19] When considering the importance of children in the continuation of broader ethnic, religious, or national populations, the “special intent” to commit genocide becomes apparent.[20] When children are deliberately targeted in the course of an armed conflict, the international community must recognize the role these actions play in establishing the special intent to commit genocide and must respond before a genocide has unfolded.[21]
[1] Gregory H. Stanton, The Ten Stages of Genocide, Holocaust Mem’l Day Trust, https://hmd.org.uk/learn-about-the-holocaust-and-genocides/what-is-genocide/the-ten-stages-of-genocide/ (last visited Sep. 22, 2025).
[2] Convention on the Prevention and Punishment of the Crime of Genocide art. II, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf.
[3] Id. at art. II; see also Jennifer Trahan, Why the Killing in Darfur is Genocide, 31 Fordham Int’l L. J. 990, 997-98 (2007), https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2107&context=ilj (identifying underlying crimes including “[k]illing members of the group; [c]ausing serious bodily or mental harm to members of the group; [d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; [i]mposing measures intended to prevent births within the group;[and] [f]orcibly transferring children of the group to another group.”).
[4] Prosecutor v. Akayesu, ICTR-96-4-T, Judgement, ¶ 523 (Sept. 2, 1998) https://www.refworld.org/jurisprudence/caselaw/ictr/1998/en/19275; see also Trahan, supra note 3, at 1005 (citing Prosecutor v. Jelisić, Case No. IT-99-36-T, Judgement, ¶ 47 (July 5, 2001); Prosecutor v. Simba, Case No. ICTR-01-76-T, Judgement, ¶ 413 (Dec. 13, 2005)).
[5] See Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, ¶¶ 162-64 (Mar. 4, 2009) (listing relevant factors from which genocidal intent can be inferred); See also Prosecutor v. Krstić, IT-98-33-A, Judgment in the Appeals Chamber, ¶ 41 (April 19, 2004) (requiring that where prosecution relies on an inference to establish state of mind, that inference must be “the only reasonable inference available on the evidence” in a case before the International Tribunal for the former Yugoslavia).
[6] Prosecutor v. Al Bashir at ¶ 164.
[7] UN Human Rights Council, Don’t Get Stuck on a Definition of Genocide Before Taking Action, Expert Warns, at 1:39, YouTube (YouTube, Mar. 5, 2025), https://www.youtube.com/watch?v=Ccjgr-sS670 (discussing early warning and genocide prevention).
[8] Id. at 1:08.
[9] Hilly Moodrick-Even Khen, The Forcible Transfer of Children from Ukraine as Genocide, 32 Int’l. J. Child. Rts. 78, 89 (2024), https://campuscore.ariel.ac.il/wp/rsg/wp-content/uploads/sites/329/2023/07/CHIL_032_01_Khen_forcible-transfer_OA-1.pdf.
[10] Id. at 85-87; Human Rights Council, Legal Analysis of the Conduct of Israel in Gaza Pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide, ¶¶ 218-19, U.N. Doc. A/HRC/60/CRP.3 (Sep. 16, 2025), https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session60/advance-version/a-hrc-60-crp-3.pdf.
[11] See generally Mark LeVine & Eric Cheyfitz, Israel, Palestine, and the Poetics of Genocide Revisited, J. Genocide Rsch. (Apr. 2025), https://www.tandfonline.com/doi/full/10.1080/14623528.2025.2482297 (published as part of a forum entitles “Israel-Palestine: Atrocity Crimes and The Crisis of Holocaust and Genocide Studies).
[12] David Gritten & Imogen Foulkes, Israel has Committed Genocide in Gaza, UN Commission of Inquiry Says, BBC (Sept. 16. 2025), https://www.bbc.com/news/articles/c8641wv0n4go.
[13] Human Rights Council, supra note 11, at ¶ 214.
[14] Id. at ¶ 215.
[15] Id.
[16] Id. at ¶¶ 216, 218.
[17] Id. at ¶ 219.
[18] See Jesus Mesa, Israel Responds After Leading Scholars Declare Gaza War a ‘Genocide’, Newsweek (Sept. 1, 2025, 5:27 PM), https://www.newsweek.com/israel-responds-after-leading-scholars-declare-gaza-war-genocide-2122844. Butsee Human Rights Council, supra note 11, at ¶¶ 214-217.
[19] See Human Rights Council, supra note 11, at ¶¶ 214-218.
[20] See Khen, supra note 9 at 1031-33; see also Human Rights Council, supra note 11, at ¶ 219.
[21] See Human Rights Council, supra note 11, at ¶ 220.