Mike Becker
@mikebecker.bsky.social
Assistant Professor (Trinity College Dublin, School of Law). Public International Law, International Courts and Tribunals, ICJ, ITLOS, International Human Rights Law, Fact-Finding and Inquiry, Law of the Sea
Whether they’re fishermen or drug smugglers, it’s unlawful either way.
September 29, 2025 at 10:14 PM
Whether they’re fishermen or drug smugglers, it’s unlawful either way.
In sum, the COI’s wide-ranging report makes several compelling points. Its conclusions align with those of many experts who have come to the view that the evidence can support a finding of genocide in Gaza. But I am also not sure that the argument has been fully made out here.
September 17, 2025 at 12:00 PM
In sum, the COI’s wide-ranging report makes several compelling points. Its conclusions align with those of many experts who have come to the view that the evidence can support a finding of genocide in Gaza. But I am also not sure that the argument has been fully made out here.
The COI’s recommendation that states meet their obligations by cooperating with the ICC makes sense. I am less persuaded by the suggestion (¶250) that states should intervene in South Africa v Israel at the ICJ case to fulfil those responsibilities.
September 17, 2025 at 12:00 PM
The COI’s recommendation that states meet their obligations by cooperating with the ICC makes sense. I am less persuaded by the suggestion (¶250) that states should intervene in South Africa v Israel at the ICJ case to fulfil those responsibilities.
In my view, the ICJ’s Jan 2024 provisional measures order already established a serious risk & triggered third-state duties. At a minimum, the COI report reaffirms the risk. For the UK or EU states debating the future of the EU-Israel trade association, perhaps this matters.
September 17, 2025 at 12:00 PM
In my view, the ICJ’s Jan 2024 provisional measures order already established a serious risk & triggered third-state duties. At a minimum, the COI report reaffirms the risk. For the UK or EU states debating the future of the EU-Israel trade association, perhaps this matters.
For third states, this report should clear away any remaining doubt that there is at least a ‘serious risk’ of genocide in Gaza. Per the ICJ, this requires states to take action to prevent genocide and avoid complicity, including by suspending military assistance to Israel.
September 17, 2025 at 12:00 PM
For third states, this report should clear away any remaining doubt that there is at least a ‘serious risk’ of genocide in Gaza. Per the ICJ, this requires states to take action to prevent genocide and avoid complicity, including by suspending military assistance to Israel.
In the pending cases relating to Gaza, the ICJ may need to do more than it has in some past cases to understand how this COI carried out its work and whether specific objections to the report’s analysis have merit or require follow-up.
September 17, 2025 at 12:00 PM
In the pending cases relating to Gaza, the ICJ may need to do more than it has in some past cases to understand how this COI carried out its work and whether specific objections to the report’s analysis have merit or require follow-up.
The ICJ is more likely to credit a COI’s factual findings than its legal conclusions. How a COI applied the law may be of interest, but the ICJ will conduct its own legal analysis, not simply defer to the COI’s conclusions on commission of genocide or incitement.
September 17, 2025 at 12:00 PM
The ICJ is more likely to credit a COI’s factual findings than its legal conclusions. How a COI applied the law may be of interest, but the ICJ will conduct its own legal analysis, not simply defer to the COI’s conclusions on commission of genocide or incitement.
But this & the COI’s other work will undoubtedly find its way into the record in South Africa v Israel at the ICJ. Parties often ask the ICJ to rely on third-party fact-finding reports, and the ICJ will do so in certain circumstances (as I discuss here: www.cambridge.org/core/journal...).
Recent developments in reliance upon third-party fact-finding at the International Court of Justice | Leiden Journal of International Law | Cambridge Core
Recent developments in reliance upon third-party fact-finding at the International Court of Justice
www.cambridge.org
September 17, 2025 at 12:00 PM
But this & the COI’s other work will undoubtedly find its way into the record in South Africa v Israel at the ICJ. Parties often ask the ICJ to rely on third-party fact-finding reports, and the ICJ will do so in certain circumstances (as I discuss here: www.cambridge.org/core/journal...).
What impact will this report have? First, it is not a judgment. Moreover, the COI’s ‘reasonable grounds’ standard of proof differs from the ICJ’s ‘fully convincing’ standard or a criminal ‘beyond a reasonable doubt’ standard (although it then adopts the ICJ standard, ¶220).
September 17, 2025 at 12:00 PM
What impact will this report have? First, it is not a judgment. Moreover, the COI’s ‘reasonable grounds’ standard of proof differs from the ICJ’s ‘fully convincing’ standard or a criminal ‘beyond a reasonable doubt’ standard (although it then adopts the ICJ standard, ¶220).
Israel has predictably attacked the report. But Israel refuses to engage with the COI that it now accuses of using false/incomplete information. At this point, the burden is on Israel to rebut the COI’s specific findings & conclusions (and it will have that chance at the ICJ).
September 17, 2025 at 12:00 PM
Israel has predictably attacked the report. But Israel refuses to engage with the COI that it now accuses of using false/incomplete information. At this point, the burden is on Israel to rebut the COI’s specific findings & conclusions (and it will have that chance at the ICJ).
Ultimately, the allegation that Israel is committing genocide is linked to the idea that systematic IHL violations can demonstrate genocidal intent. Did the COI do enough to make that case & connect the dots? South Africa will probably need to do more on this to persuade the ICJ.
September 17, 2025 at 12:00 PM
Ultimately, the allegation that Israel is committing genocide is linked to the idea that systematic IHL violations can demonstrate genocidal intent. Did the COI do enough to make that case & connect the dots? South Africa will probably need to do more on this to persuade the ICJ.
As legal analysis, some parts of the report are more compelling than others. The COI might have put itself on stronger footing by addressing predictable counterarguments in greater detail (namely, Israel's claims about military necessity, compliance with IHL, and Hamas's role).
September 17, 2025 at 12:00 PM
As legal analysis, some parts of the report are more compelling than others. The COI might have put itself on stronger footing by addressing predictable counterarguments in greater detail (namely, Israel's claims about military necessity, compliance with IHL, and Hamas's role).
For the COI, this refusal to change course weighs heavily and points to genocidal intent. It might also suggest that if Israel had taken any number of ‘off-ramps’ at earlier points in the post-7 October conflict, genocidal intent would be harder to establish.
September 17, 2025 at 12:00 PM
For the COI, this refusal to change course weighs heavily and points to genocidal intent. It might also suggest that if Israel had taken any number of ‘off-ramps’ at earlier points in the post-7 October conflict, genocidal intent would be harder to establish.
A recurring theme in the report is Israel’s refusal to alter its approach as the death toll has risen & the humanitarian crisis deepened (¶48). Instead, Israel has defied ICJ orders (¶195) and doubled down (¶181), even as its approach has failed to secure release of the hostages.
September 17, 2025 at 12:00 PM
A recurring theme in the report is Israel’s refusal to alter its approach as the death toll has risen & the humanitarian crisis deepened (¶48). Instead, Israel has defied ICJ orders (¶195) and doubled down (¶181), even as its approach has failed to secure release of the hostages.
The COI’s account of Israel’s siege tactics, deprivation of food, destruction of hospitals, housing and infrastructure, and repeated forced displacements builds to the COI’s conclusion that Israel's actions cannot reasonably be explained by anything other than genocidal intent.
September 17, 2025 at 12:00 PM
The COI’s account of Israel’s siege tactics, deprivation of food, destruction of hospitals, housing and infrastructure, and repeated forced displacements builds to the COI’s conclusion that Israel's actions cannot reasonably be explained by anything other than genocidal intent.
In my view, the most effective part of the report is where it sets out its findings on acts ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction’ (¶¶ 83-147).
September 17, 2025 at 12:00 PM
In my view, the most effective part of the report is where it sets out its findings on acts ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction’ (¶¶ 83-147).
It also finds that Israel has failed to punish incitement for genocide, citing statements by Isaac Herzog, PM Netanyahu, and Yoav Gallant. The COI had previously found that Israel was committing war crimes & crimes against humanity in Gaza; here, the focus is genocide.
September 17, 2025 at 12:00 PM
It also finds that Israel has failed to punish incitement for genocide, citing statements by Isaac Herzog, PM Netanyahu, and Yoav Gallant. The COI had previously found that Israel was committing war crimes & crimes against humanity in Gaza; here, the focus is genocide.
The 16 Sept 2025 report (here: www.ohchr.org/sites/defaul...) concludes that Israel is responsible for the ongoing commission of genocidal acts in Gaza. It considers that 4 of 5 categories of genocidal acts in Art II of the 1948 Convention have been committed with genocidal intent.
www.ohchr.org
September 17, 2025 at 12:00 PM
The 16 Sept 2025 report (here: www.ohchr.org/sites/defaul...) concludes that Israel is responsible for the ongoing commission of genocidal acts in Gaza. It considers that 4 of 5 categories of genocidal acts in Art II of the 1948 Convention have been committed with genocidal intent.
Well, anyone can argue anything, of course. As I was quoted in the piece, however, I don't think Article 38 covers the word of God.
August 25, 2025 at 12:18 PM
Well, anyone can argue anything, of course. As I was quoted in the piece, however, I don't think Article 38 covers the word of God.