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.”

The situation with the ICC is more complex. Israel has never ratified its status, thereby not giving the ICC control over their jurisdiction. However, Palestine has argued that there should be a full investigation into war crimes in the West Bank and Gaza.

Alongside Hamas leaders, Israeli Prime Minister Benjamin Netanyahu and Israeli Defence Minister Yoav Gallant have been accused of intentionally using starvation as a means of warfare. While no arrest warrants have yet been issued, Bracka predicted that they would be. He stressed that, “While one side has ripped up the international playbook of international law, the other side is fighting terrorists with one arm tied behind their backs,” comments attributed to former Israeli Supreme Court Justice Aharon Barak.

Accusations of both genocide and war crimes against Israel are rife on Australian campuses.

“We have seen a lot of diatribes, which have caused a lot of stress for students and staff,” said Castan.

Slucki, who is the Director of the Australian Centre for Jewish Civilisation, said universities have not done a good enough job in responding, although some were worse than others. He praised the Monash University leadership for its extensive consultation efforts, and pragmatic steps like limiting protests to students and staff, as well as separating the two camps to minimise escalation.

Slucki stressed that the solution is not in the legal process. “You can’t just legislate this stuff out of existence. Rules aren’t enough,”he said.

He urged better understanding of each other’s despair and a focus on engaging with other people’s humanity rather than polarised thinking. “It’s symptomatic of a bigger problem in universities where totalitarian thinking focused on lived experience, does not apply to Jewish students and staff.”

He also emphasised the role of universities to "cultivate young people’s abilities to become leaders of tomorrow. If they can’t have mature conversation with each other, we are failing our mission...we need to teach them to see the humanity in others.”

Castan, who is the Director of the Castan Centre for Human Rights Law, explained the legal limitations within Australia. She said that there is no free speech doctrine in Australia and an American interpretation of free speech could be considered vilification under Australian law.

Compared to the stressful and highly emotive discussion of the past year, the event was an opportunity to hear considered and informed views highlighting the difficult tensions both locally and internationally.

NIF Australia director Michael Chaitow said “We were really pleased to be able to put this event on at such an important time. We all know that these concepts and these topics can be daunting but as our panelists noted repeatedly, we can't shy away from tough conversations. We have to come together to discuss the things that matter to our community: justice, equality and security for all across the region.”