Legal scholar Gerald Posner released a detailed analysis on Monday examining whether the October 7 attack on southern Israel by Hamas meets the legal criteria for genocide under the 1948 Genocide Convention. Posner's paper, titled *The Genocide Case Against Hamas*, builds on his earlier work assessing whether Israel’s military operations in Gaza could be considered genocidal, now turning the focus to Hamas’s actions.
Posner addressed foundational legal questions regarding the applicability of the Genocide Convention to non-state actors and the requirement for sustained campaigns. Citing precedents from international tribunals, he noted that genocide can be committed by non-state groups such as militias or individuals, and that a single act with the requisite intent may fulfill the threshold for genocide without a prolonged time frame. He referenced cases including the Rwandan genocide, the Srebrenica massacre, and convictions of ISIS members for genocidal crimes against Yazidis to support this interpretation.
Under international law, genocide requires both a prohibited act (actus reus), which includes killing and causing serious bodily or mental harm, and a specific intent (dolus specialis) to destroy a protected group. Posner acknowledged that while evidence of mass killing and torture during the Hamas assault is clear, establishing special intent is often more complex.
To assess intent, Posner analyzed Hamas’s founding documents, leadership statements, and operational behavior. He cited the original 1988 Hamas Covenant, which includes language calling for the killing of Jews, and public declarations by leaders such as Yahya Sinwar’s 2022 promise of an overwhelming attack and Fathi Hammad’s 2019 statement advocating violence against Jews worldwide. Posner contrasted these with a 2017 Hamas document aimed at softening the group’s public image, arguing this was a superficial rebranding that did not replace the harsher language or change the group’s underlying objectives.
Posner reviewed the details of the attack on multiple communities including Kibbutz Be’eri, Kfar Aza, and Nir Oz, where attackers reportedly engaged in house-to-house executions, arson, and torture. He cited forensic data indicating that 80% of bodies at Be’eri showed signs of torture and highlighted recovered Hamas documents instructing fighters to maximize casualties. At the Nova music festival, where 364 people died, he argued that the subsequent pursuit and killing of survivors demonstrated deliberate targeting rather than incidental harm.
The analysis addressed questions about non-Jewish casualties, pointing out that international law does not require all victims to belong to the targeted group as long as the attack is aimed at destroying that group. Posner also documented reports of widespread sexual violence and mutilation consistent with genocidal acts, referencing UN Special Representative Pramila Patten’s findings and survivor testimony.
Drawing comparisons to the 1995 Srebrenica massacre, Posner contended that proportionally, the devastation inflicted on certain communities during the Hamas attack meets or exceeds the level of destruction recognized as genocide in that case. He emphasized that rapid timing and logistical limitations do not diminish the genocidal intent when orders explicitly called for maximum civilian casualties.
Posner criticized international bodies and some human rights organizations for selectively applying the genocide framework. He noted that while entities such as the International Association of Genocide Scholars and the UN Commission of Inquiry have alleged genocide by Israel, they have largely refrained from formally recognizing the October 7 Hamas attack as genocide. He also pointed to Amnesty International and B’Tselem, which labeled the Hamas atrocities as war crimes but did not assess them under the Genocide Convention.
In closing, Posner challenged detractors to offer credible military justifications for specific acts such as the killing of infants and elderly civilians, to explain the explicit instructions for house-to-house executions, to reconcile the original covenant’s language with the physical evidence of the massacre, and to provide alternative readings of statements by Hamas leaders pledging repeated violence. He argued that leaving these questions unanswered reinforces the argument that the October 7 events constitute genocide under international law.