Experts speak on Israel-Gaza genocide claims

In the pictures which flooded the newspapers the morning after, most of that light came from protesters: the flares and fireworks lit up by pro-Palestinian rallygoers, just days after the October 7 attack on Israel by Hamas.

But the Sydney Opera House was generating its own light: the colours of the Israeli flag, lit up in support of the nation that had just lost 1200 people, with 240 more held as hostages.

The protest was held before the military retaliation from Israel, an advance on the Gaza Strip that has led to a reported death toll of more than 17,000 Palestinians so far.

For some Australians, it was hard to understand why protesters would rally for Palestine; the October 9 rally was later described as “shocking”, “un-Australian”, and even a “celebration” of the attack. For others, the answer was simple.

“[Palestinians] are fighting against an occupation that has been murdering them for over 80 years,” one protester said. Chants of “Israel, Israel, you can’t hide! You’re committing genocide!” echoed around the crowd of hundreds, from the moment they first gathered at Town Hall.

The term genocide is being used by politicians, journalists and citizens, whether you agree with it or not.

But is everyone using the word in the same way?

Genocide as a word was coined in 1944 by Polish jurist Raphael Lemkin as a means of describing the Holocaust during World War II. Under the United Nations’ (UN) Genocide Convention, it’s defined as such:

“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

• Killing members of the group;

• Causing serious bodily or mental harm to members of the group;

• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

• Imposing measures intended to prevent births within the group;

• Forcibly transferring children of the group to another group.”

So long as the conditions of the first sentence are met, the act of genocide need only meet one of the five examples.

The term has been used several times by those connected to the UN. On November 16, a group of UN experts made a public statement that noted the risk of genocide in the Gaza Strip and decried the “failure” of the world’s governments to call for an immediate ceasefire.

“We are also profoundly concerned about the support of certain governments for Israel’s strategy of warfare against the besieged population of Gaza, and the failure of the international system to mobilise to prevent genocide,” they said.

On November 1, Craig Mokhiber, director of the New York office of the UN high commissioner for human rights, left his position while calling the conflict a “text book case of genocide”, saying the UN “appears powerless to stop it”.

When Mr Mokhiber left the UN, Alexander Hinton, Chair on Genocide prevention at the United Nations Educational, Scientific and Cultural Organisation (UNESCO), described Mr Mokhiber’s definition of genocide as “a more social scientific understanding that looks at settler colonialism and sort of this long term gradual erasure of a group”.

Likewise, protesters and activists are not working off a strict legal definition: When protesters shout “Israel, Israel, you can’t hide! You’re committing genocide!”, they are not considering whether their definition is in line with the UN’s legal framework.

But Eyal Mayroz, senior lecturer in the Department of Peace and Conflict Studies at the University of Sydney, argued the legal definition is of extreme importance, and can only be determined by a competent court.

“The carnage [in Gaza] is a major tragedy which I abhor,” he told news.com.au. “But in many cases, victims and/or families or supporters of people who have been through, or are going through, terrible ordeals, have a strong feeling that nothing short of the genocide label could do justice to what they are experiencing.”

Dr Mayroz said as a result, more and more have used the term to describe a series of mass atrocities, which he said risks diminishing the importance of the term.

He also said while the initial enforcement of the complete siege on Gaza may have been close to genocide, he did not think the situation in Gaza met the strict legal definition of proving intent.

“Ongoing attempts and efforts to warn the Palestinian population, the insistence that they’re focusing on Hamas and not on [Palestinians], allowing opening of humanitarian corridors, sometimes putting at risk Israeli soldiers in order to try to prevent additional deaths – that is all indication that in effect, Israel has not been conducting a genocidal massacre,” he said.

He said that this access, while “hugely insufficient”, may have helped prevent a potential genocide.

Dr Mayroz said he would more likely attribute Israel’s actions to possible war crimes and crimes against humanity, which are not considered lesser crimes by international law.

It’s by these same standards that Dr Mayroz said the October 7 attack could be argued as genocidal, on account of Hamas’ explicit intent to drive out Jewish people.

The Zionist Federation of Australia said the same, claiming the attack was in line with Hamas’ “long-published objective (i.e. intent) of destroying Israel and killing all Jews”.

“The accusation that Israel is committing genocide is offensive and wrong,” said Jeremy Leibler, President of the Zionist Federation of Australia, who added “supposed experts” were using the term inaccurately and betraying the trust of those who have experienced genocide.

“Israel has the military means to kill every Gazan very quickly – but of course Israel is not doing that,” he said.

“Israel has a clear and just military objective in this war – to remove Hamas from power, and it is pursuing that objective. That civilians are dying in this campaign is tragic. But their deaths are morally and legally the fault of Hamas, which has committed multiple war crimes by using civilian infrastructure for military purposes, thereby endangering civilians.”

However, Dr Mayroz added that only a “serious risk” of genocide needs to apply to invoke the Genocide Convention to an international court.

Both Israel and Palestine have ratified (given formal consent to) the Genocide Convention.

Nasser Mashni, president of the Australia Palestine Advocacy Network, said that the past two months have been “the world’s first digitally broadcast genocide”, and that intent was made evident by siege conditions placed onto Gaza and the displacement and blanket bombing of civilians.

“It’s our obligation as humans and moral beings, and for Australia, as a party to the UN Genocide Convention, to act with speed and decisiveness to put an end to these atrocities,” he said.

Associate Professor Melanie O’Brien, expert in International Criminal Law and President of the International Association of Genocide Scholars, said she was concerned there was at minimum a risk of genocide, and that there was a strong legal argument for the case.

“What Hamas did is absolutely horrific and illegal, and they should also be pursued and prosecuted,” she told news.com.au. “But one war crime does not justify another.”

Dr O’Brien noted that in the International Criminal Tribunal on the 1994 Rwandan genocide, it was ruled that genocide could be determined through a broader context, such as a history of violence and discrimination.

“Genocide is a process, not an event,” she said. “The current violence is in the context of long-term violations of the rights of Palestinian people.”

As an example, Dr O’Brien mentioned that the International Court of Justice (ICJ) advised the Israeli West Bank barrier, built to separate the territory and its people, was deemed illegal under international law.

In addition to this, along with the violence and cutting off of supplies in Gaza, Dr O’Brien said several quotes from high-ranking Israeli figures could help with a determination of genocidal intent.

Israel’s president, Isaac Herzog, said regarding Hamas’ attack, “It’s an entire nation out there that is responsible. This rhetoric about civilians not aware, not involved, it’s absolutely not true.”

IDF spokesperson Daniel Hagari said that as they advance in the Gaza Strip, “while balancing accuracy with the scope of damage, right now we’re focused on what causes maximum damage”.

Ghassan Alian, the head of Israel’s Coordination of Government Activities in the Palestinian Territories, said “There will be no electricity and no water [in Gaza] – there will only be destruction. You wanted hell, you will get hell”.

“That’s the type of language that we see in the genocide process,” Dr O’Brien said.

Dr Mayroz said the same, but that the controversy was if it was “sufficient to meet the high bar of proving intent” – which can only be determined by an appropriate court.

Both Dr O’Brien and Dr Mayroz agreed on the fact that regardless of definition, action needs to be taken. Dr Mayroz suggested that the ICJ could invoke provisional measures against Israel similar to the ones ordered against Russia in their war with Ukraine.

“I think my biggest concern with this conflict is the lack of action from outside states,” Dr O’Brien said.

“Regardless of labels, the international community has a legal and moral responsibility to act,” Mr Mayroz said. “And debates over labels should not distract from that duty.”