UK Middle East minister says assessing Israeli genocidal intent in Gaza 'difficult'

The UK government is unlikely to determine that Israel is at risk of committing genocide in Gaza without access to Israeli intelligence showing clear intent, the Middle East minister has suggested.

Hamish Falconer acknowledged on Monday to MPs in a tense subcommittee hearing on UK arms exports to Israel that former and current Israeli cabinet ministers had made condemnable statements about Gaza.

Former Israeli defence minister Yoav Gallant, in one example cited in the hearing, said soon after the Hamas-led 7 October attacks that Israel was "fighting human animals".

Falconer noted the frustration of fellow MPs at the government's inability to reach definitive conclusions on aspects of Israel’s conduct given "the many grotesque incidents that we see".

But he said that the evidential threshold to determine Israel's risk of committing genocide and certain breaches of international humanitarian law (IHL) in Gaza is "quite difficult to meet if you are not part of the state in question".

"Judges have noted that, often, targeting decisions are made on the basis of intelligence that other states are unlikely to have access to. That creates a difficulty for us in assessing intent. Intent is a difficult thing to assess, as it exists in the mind of others."

Falconer's comments came hours before the UN's top legal investigative body on Palestine and Israel ruled on Tuesday that Israel has committed genocide in Gaza.

It said it had identified six patterns of conduct by Israeli forces in Gaza, including mass killings, the targeting of children, and sexual violence, which were indicative of genocidal intent, and said this was the “only reasonable inference” that could be drawn from its findings.

The UK’s position is also at odds with the world’s top genocide scholars, international human rights organisations and most recently Spain, whose prime minister said earlier this month that Israel was “exterminating a defenceless people”.

The questions from the MPs were sparked by a letter that David Lammy, the former foreign secretary, sent to the chair of the international development committee this month saying that the government had not concluded that Israel was carrying out a genocide in Gaza.

"As per the genocide convention, the crime of genocide only occurs where there is ‘specific intent to destroy in whole or in part a national, ethnic, racial or religious group’. The government has not concluded that Israel is acting with that intent," Lammy wrote.

In Monday's hearing, Liberal Democrat MP Richard Foord said the problem with the government's approach "is that the determinations can come so late that the British state will be unable to do anything about it".

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"The last time that the UK recognised a genocide as having taken place - the determination around Daesh and the Yazidis - the genocide was said to have taken place nine years prior to the determination," Foord said.

Falconer pointed to the Labour government's assessment within weeks of its election victory that Israel was at risk of serious breaches of international humanitarian law in Gaza which triggered "a whole range of actions".

Those included, he said, suspending arms exports licences to Israel, restoring support to Unrwa and three waves of sanctions against Israeli ministers and others. Soon, he said, the UK would "make very solemn determinations about our position in relation to the recognition of a state of Palestine".

"We have done a whole range of things, recognising the seriousness of what is before us. That does not require a legal determination of any particular international crime," Falconer said.

"We have already triggered the much lower bar - it is a very serious bar - of a risk of a serious breach of international humanitarian law, and I and other ministers have taken action in response to that."

Falconer said that Yvette Cooper, the new foreign secretary following last week's reshuffle, would soon be considering the foreign office's latest assessment - completed at the end of June - of Israel's compliance and commitment to IHL in Gaza which will also consider the risks that Israel is committing genocide.

Labour MP Liam Bryne, chair of the committee, asked Falconer if he could set out the reasoning for any conclusions about Israel's risk of committing genocide after the assessment was complete so that MPs could understand how they were reached. Falconer said he would do his best to "elucidate our reasons".

Bryne said: "That would be very welcome. Many of us are looking at this and asking, “What is it going to take before the UK concludes that its duty to prevent genocide has been triggered?”