Genocide, incitement to genocide and impunity

A classmate’s sister contacted me about three years ago, to say that she was finding it difficult to get a visa to Israel, and that she had heard that I knew the Honorary Consul. I responded immediately. Despite much difficulty, I managed to track the then Honorary Consul down in a country he was taking up residence in. We recalled the many Israel National Days he had invited me to, then taking kindly to the many repeated WhatsApp reminders I sent him, he intervened and through his counterparts in India got her the visa.

I then wondered why I too had not visited this country of resilience and innovation, also since I had heard very inviting reviews from a secretary who worked with me, who visited Jerusalem years ago, and to date, I hold in deep reverence the souvenir she gave me, owing to its profound religious relevance. My mind also goes back four decades to a chance meeting with an Israeli woman in New York, who over many coffees told me that when she and her family left Israel to live in the USA, they had lost their way, and had no option but to take refuge in a Palestinian camp, where they were treated with unusual warmth and hospitality before being accompanied out of the camp site.

Balcony Over Jerusalem, by John Lyons

Given my interest in the subject, friends in Sydney gifted me this very readable and insightful “Middle East Memoir”, a fascinating personal journey through the wonders and dangers of the Middle East, giving context to the devastating war between Israel and Palestinians in Gaza and providing readers with a behind-the-scenes look at the Israeli occupation of the West Bank.

The UN initiative

The events of October 2023 were tragic. The heart rending events that followed were too much to take. Thus, I have awaited the outcome of this UN initiative for some time. Given the long practiced discipline in my professional work, of necessarily reviewing terms of reference, prior to accepting any assignment, I researched what the United Nations Independent International Commission of Inquiry (CoI), Terms of Reference (TOR) had been. I learned that the UN Human Rights Council (HRC) created the Commission – the CoI in May 2021, through Resolution S-30/1, during a special session on “the grave human rights situation in the Occupied Palestinian Territory, including East Jerusalem.”

CoI’s Terms of Reference 

The Commission was tasked to:

Investigate all alleged violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory (OPT), including East Jerusalem, and in Israel;

Examine all underlying root causes of recurrent tensions, instability, and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial, or religious identity; and

Identify those responsible for such violations and ensure accountability.

The mandate, reporting structure and composition

The mandate is open-ended (ongoing, not time-limited), meaning it could continue reporting annually as long as required. The reporting structure is that the Commission reports annually to both the Human Rights Council in Geneva and the UN General Assembly in New York. It’s composition included Navanethem (Navi) Pillay of South Africa, former UN High Commissioner for Human Rights, as Chair with two other members, Miloon Kothari from India and Chris Sidoti of Australia.

The landmark finding – genocide and incitement to genocide

On 16 September 2025, the United Nations Independent International Commission of Inquiry (CoI) on the Occupied Palestinian Territory (including East Jerusalem) and Israel, mandated by the Human Rights Council and supported by the Office of the High Commissioner for Human Rights (OHCHR), concluded in a landmark report that Israel has committed genocide in Gaza and that senior Israeli officials, including Prime Minister Benjamin Netanyahu, have engaged in incitement to genocide.

Fuelling legal pathways: From inquiry to courtroom

This report is the most authoritative UN commission finding to publicly apply Genocide Convention analysis to Israeli conduct in Gaza. Previous UN experts and NGOs had used the term earlier, but a formal CoI report carries special weight for courts and states. The CoI’s evidence and legal reasoning provide a documentary and testimonial reservoir that other legal actors (states, prosecutors, courts) can and will use. In short, a CoI, while not a sentence, is a legal accelerant. The International Court of Justice (ICJ), decides state responsibility under the Genocide Convention, and the International Criminal Court (ICC), may prosecute individuals for genocide, crimes against humanity, or war crimes.

International Court of Justice (ICJ), protective measures and reparations

South Africa’s case at the ICJ (Application dated April 2025) already places the question of state compliance with the Genocide Convention before the World Court. The Court can order protective measures and reparations. If the ICJ ultimately finds breaches, it can issue orders that carry binding legal weight under international law. However, enforcement of such orders remains politically charged. CoI findings are not determinative, but the Court can rely on them as persuasive factual material when weighing state evidence and legal claims.

The International Criminal Court (ICC)

The ICC pathway is different. It targets individual criminal responsibility. The Prosecutor investigates, brings charges, and a judicial chamber decides whether to issue arrest warrants. The ICC has engaged the Palestine situation and judges have considered jurisdictional and warrant applications in 2024–25. Arrest warrants for senior Israeli figures have been part of that process. An ICC warrant — if issued and executed — can lead to trial and a potential conviction. Arresting and surrendering a sitting or former head of government is legally possible under the Rome Statute, yet practically constrained by geopolitics, immunity claims, and states’ willingness to cooperate.

The Darfur/Al-Bashir saga

The Darfur/Al-Bashir saga is cited as a landmark example of international criminal law. ICC proceedings in the 2000s charged senior Sudanese officials, including Omar al-Bashir, with crimes that included genocide. Thus the CoI’s findings on incitement and systematic policies could underpin arrest warrants for individuals, including senior Israeli leadership.

Gambia v. Myanmar: The Rohingya, precedent and politics – accountability in the balance

The Gambia v. Myanmar litigation at the ICJ, over alleged genocidal acts against the Rohingya, shows that state litigation is a realistic lever for enforcing the Genocide Convention even when prosecutions are elsewhere.

The ICTR’s convictions for Rwanda (including a head of government guilty plea by a former PM) show that international justice can reach senior leaders, though it often takes years and robust international cooperation. The Darfur/ICC proceedings underscore that indictments alone do not guarantee custody or trial.

The arc – from finding to enforcement

The legal arc from finding to enforcement is long and uncertain. The CoI report’s legal language matters — it frames intent, catalogues acts, and cites incitatory statements — but courts apply their own legal standards and evidentiary burdens. In short, the report is a major milestone in the international process of accountability — it does not, by itself, convict or jail officials — but it makes judicial and political consequences more likely and more grounded in documented fact than before.

Not isolated rhetoric but State-endorsed incitement

Some of the Commission’s starkest conclusions, extracted from official UN/OHCHR releases include, direct quotations of Prime Minister Benjamin Netanyahu, and Israeli officials intre alia saying that “Palestinians in Gaza are animals” and that “the territory should be erased” ; Calls by Israeli ministers to “cut off water, food, and electricity to Gaza”; Documentation of systematic attacks on hospitals, schools, and refugee camps, which have been interpreted as acts aimed at destroying the population’s survival capacity.

The CoI stresses that statements, combined with policies of blockade, bombardment, and forced displacement, are not isolated rhetoric but state-endorsed signals enabling the commission of genocidal acts.

UN Charter/Security Council

Under the UN Charter, the Security Council has authority to take collective action, though political divisions can block or limit measures. The Genocide Convention itself and the Charter interact. Enforcement often depends on politics at the Council.

Security Council and General Assembly measures

Sanctions, arms embargoes, suspension from bodies, and diplomatic isolation, are measures that are possible but depend on Security Council voting dynamics and member states’ politics. The Human Rights Council and General Assembly can adopt condemnatory resolutions and recommend action.

Srebrenica and Gaza: Historical precedent and present parallels

The clearest precedent for Gaza lies in Srebrenica (1995), where Bosnian Serb forces under Ratko Mladić massacred over 8,000 Bosniak men and boys in a UN-declared “safe area.” The international community’s delayed response was later described by the UN itself as a “darkest hour.”

The International Criminal Tribunal for the Former Yugoslavia, convicted Mladić and political leader Radovan Karadžić of genocide, crimes against humanity, and war crimes. Their public statements and directives were key evidence of genocidal intent and incitement.

The ICJ (2007, Bosnia v. Serbia), confirmed the Srebrenica genocide and ruled that Serbia had breached its obligation to prevent and punish genocide, though it did not find Serbia itself directly guilty of committing it. Both the UN General Assembly and Secretary-General have since formally recognized Srebrenica as genocide.

Parallels to Gaza:

Both involve UN-declared safe areas coming under siege and massacre. In each, leadership rhetoric—whether Mladić’s mocking taunts in 1995 or Netanyahu’s dehumanizing speeches in 2023–25—was treated as crucial evidence of genocidal intent. The legal architecture is the same: Genocide Convention, ICJ state responsibility, ICC/ICTY individual accountability.

Personal relevance – “I am in Solidarity with Humanity”

My motivation for this article and the rationale for my investment of time into this research, is quite simply my “Solidarity with Humanity” which also generated articles over decades on the topic “Intercommunal, interreligious, interracial harmony in Sri Lanka.”

As for Gaza, here are a few only, of my many posts on LinkedIn over almost 24 months on the Israel Palestinian issue, pursuant to that tragic event in October 2023. I said:

“It is ironic that nations such as ours (Sri Lanka) are subjected to austerity, part imposed by the International financial institutions, controlled by nations whose leaders whether President Biden or Prime Minister Sunak fuel fires, rather than douse them, openly financing, funding and equipping the escalation of wars, while their people in USA and England are on the streets demanding a ceasefire.”

“The Governance Leadership of University Boards in Ivy League Schools such as no less than in globally top ranked Harvard, buckle down under pressure from lobby groups, whether they are donors, sponsors, advertisers or others.”

“It is shameful to see owners of big global brands, aligning themselves with a political leadership of perpetrators of atrocities, to protect their business interests in those countries.”

“I was aghast when I read and saw images and videos of the following: “There were more than 50,000 pregnant women in Gaza when the war began on Oct. 7, according to United Nations estimates. Gaza has one of the highest birthrates in the region. Some 180 women in the enclave give birth each day on average, many now with little or no medical help, sometimes in dirty, overcrowded shelters, public bathrooms or cold, makeshift tents,

“I question the stance of Western leaders, particularly in the US & UK and of women, of mothers – former Presidential candidates such as Hillary Clinton, or Kamala Harris, who showed no empathy, and spoke against a ceasefire while their countries, defended, supported, financed or contributed to the heartless retaliation.”

Parallels with roles in regulation

We often fail to identify with parallels in the overall Governance, Oversight and Monitoring, Strategic Management, Investigations, Interventions, Directives, Litigation, Prosecution and Enforcement that are required of us in regulatory bodies on which I have served, such as the Securities and Exchange Commission; Accounting and Auditing Standards Monitoring Board and the Consumer Affairs Authority’s apex body the Consumer Affairs Council.

We can be passive passengers in these roles or independent and objective, courageous and progressive, fair, just and equitable, up to date and responsive, proactive participants. I chose the latter, often building capacity, inter-alia monitoring the domain specific eco system, stepping into stricture an irresponsible player, in the larger public and national interest, imposing fines and penalties, directives for compensation, filing action connected with capital market offences, even resisting political interference which may have otherwise resulted in regulatory forbearance. My point is that at a national or global level there has to be courage to take a stand. If not, the institutions lose relevance and the people lose credibility.

The UN Security Council – a heartless sixth time

Let me now conclude with a reference to the Security Council. In a deeply emotional address to the United Nations Security Council on 18 September 2025, Algeria’s Ambassador Amar Bendjama broke with the usual formality of diplomacy. After the United States vetoed — for the sixth time — a draft resolution demanding an immediate and unconditional ceasefire in Gaza, Bendjama turned not to fellow diplomats but to the Palestinian people themselves:

“Forgive us, children of Gaza”. “Forgive us, brothers and sisters.”

His words carried the weight of overwhelming loss. More than 65,000 Palestinians killed, including 18,000 children and 12,000 women. The human toll extended beyond civilians in their homes — with over 1,400 doctors and nurses murdered while treating the wounded, and over 250 journalists killed while documenting the war. Refugee camps, hospitals, and schools — the very symbols of sanctuary — had been reduced to rubble.

That moral indictment of a Security Council

Bendjama’s appeals for an immediate ceasefire, were not just rhetorical. It was a moral indictment of the Security Council which allowed impunity to prevail. Of 15 Security Council members, fourteen voted for the resolution. Only one — the United States — stood in opposition, silencing the Council’s consensus, amidst the Ambassador’s words: “History will not forgive our silence. The people of Gaza will not forget.”

Global governance – held hostage by a single veto

Bendjama shifted the tone of the debate from procedural politics to raw humanity. We are witnessing again and again, the political paralysis of the Security Council, despite the legal findings of genocide and incitement- Global governance held hostage by a single veto. 

What a tragedy. When then, will there be much needed reform of this system, so that whether Arab or Jew or any other representative of humanity, whether between and beyond the river and the sea, they will all rightfully enjoy a peaceful, mutually respectful coexistence.