Understanding genocide and war crimes accusations

The legal and ethical considerations of the Israel-Hamas war were the focus of a joint event hosted by The Jewish Independent and the New Israel Fund Australia on Sunday night.

Historian Associate Professor David Slucki and legal scholar Dr Jeremie Bracka discussed both international law and on-the-ground campus experience in a panel moderated by law academic Professor Melissa Castan.

Bracka explored Israel's obligations under international law, noting that Hamas’ “unspeakable horrors” do not “give Israel a blank cheque” in its response in Gaza.

International humanitarian law does not protect civilians against causalities but prevents indiscriminate harm against civilians.

Bracka said the Israeli military has an entire unit with legal scholars who assess whether the military gain of an operation justifies the civilian casualties, adding that strikes are cancelled when the civilian death toll is determined to be too high.  “This is much harder when the enemy is deliberately using hospitals, schools, etc,” he said.

He explained the role of the International Court of Justice (ICJ), which has jurisdiction over disputes between countries and the International; Criminal Court (ICC) has jurisdiction to determine whether individuals have committed war crimes.

As a signatory to the Genocide convention, Israel is subject to the ICJ. South Africa, recently joined by Turkey, has asked the ICJ to rule on whether Israel has committed genocide or incitement to commit genocide.

The term genocide “is a very high bar to prove” pointed out Bracka, adding that “it is a very specific, legal standard about destroying a group, while incitement to genocide is also very difficult to prove. Even inflammatory hate speech is still hard to use as evidence that it is meant to destroy a people.”