The war in Gaza is a divisive topic in the community, including in the Australian legal profession. To better inform the conversation, Brief Editor-at-Large Dr Michael Douglas commissioned a piece on the subject by Dr Melanie O’Brien.
Dr Melanie O’Brien is Associate Professor of International Law, UWA Law School and Immediate Past President of the International Association of Genocide Scholars. Dr O’Brien was a 2023-24 Visiting Professor at the Center for Holocaust & Genocide Studies, University of Minnesota, USA; and is a Visiting Scholar at the Human Rights Center, Law School, University of Minnesota.
Dr O’Brien’s expertise has been recognised at the highest level: the International Criminal Court has cited Dr O’Brien’s work on forced marriage, and she has been an amica curia before the ICC. Among other things, she has been an expert consultant for multiple UN bodies, including the UN Special Advisor on Genocide Prevention and the UN Special Rapporteur on Iran. She has also written a book on the genocide process: From Discrimination to Death (Routledge 2023).
Brief has also published, in response, an article by Mark Friedgut, a Sydney-based barrister who is an expert on the Arab Israeli conflict, titled The accusation of genocide: A rebuttal.
Introduction
There has been a great deal of discussion about the categorisation of crimes taking place in Gaza. In international criminal law, there are three main categories of crimes: war crimes, crimes against humanity, and genocide.
These are not merely political descriptors: they are legal categories with legal consequences. These legal categories are found in international law.
War crimes are violations of international humanitarian law (IHL), otherwise known as the laws of war. IHL regulates the means and methods of warfare, and ensures protection of civilians and others who should not be subject to attack in armed conflict. IHL rules are found in many treaties, the most well-known of which are the 1949 Geneva Conventions and their 1977 Additional Protocols, and also in extensive rules of customary international law, which is law that binds all states, regardless of whether it is found in a treaty. The Rome Statute of the International Criminal Court (ICC) contains war crimes as one of the categories of crimes that the ICC has jurisdiction over. War crimes include wilful killing, torture, destruction of property, deprivation of fair trial rights, hostage taking, attacking civilians and civilian objects, attacking peacekeeping personnel, attacking non-military objectives, killing someone who has surrendered, denial of quarter, rape, pillaging, employing poisoned weapons and many more.
Crimes against humanity were prosecuted in the post-World War II International Military Tribunal at Nuremberg, which prosecuted the Nazi leadership. There is currently no treaty dedicated to the regulation of crimes of humanity, but the preparatory meetings for a crimes against humanity treaty will begin in 2026, with negotiations to come. The ICC has jurisdiction over crimes against humanity. Crimes against humanity include murder, extermination, enslavement, deportation, torture, rape, persecution, enforced disappearance and apartheid.
Genocide is also one of the ICC crimes, with a definition that is directly drawn from the 1948 Genocide Convention. This Convention obligates state parties to prevent and punish genocide and the incitement of genocide.
In international law, there are two categories of responsibility: state and individual. State responsibility is where the state itself is responsible for violations of international law. State accountability is usually implemented through bilateral or multilateral negotiations, or through international dispute mechanisms such as courts or tribunals. The most well-known mechanism is the International Court of Justice (ICJ), which adjudicates disputes between states. Breaches may be addressed through cessation of the violation, guarantees of non-repetition, restitution or reparations.
Individuals can be prosecuted for committing international crimes in domestic or international courts and tribunals. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) prosecuted individuals for war crimes, crimes against humanity and genocide committed in the former Yugoslavia in the 1990s; and the International Criminal Tribunal for Rwanda (ICTR) prosecuted persons responsible for those crimes in the Rwandan Genocide of 1994. The permanent ICC began functioning in July 2002, and has jurisdiction over crimes committed in the territory of a state party or by a national of a state party (Australia is a state party).
Recent international crimes in Israel and Palestine
War crimes and crimes against humanity were committed by Hamas and affiliated armed groups in the horrific attacks that occurred on 7 October 2023. Such crimes include deliberately attacking civilians; murder; torture or cruel, inhuman or degrading treatment; sexual violence including rape; and the ongoing crime of hostage-taking.
It is beyond the scope of this piece to explore the vast array of war crimes and crimes against humanity that have been and are being committed on the ground in Gaza. Such crimes include attacking hospitals, healthcare workers and medical transports; indiscriminate bombing; imprisonment or other severe deprivation of liberty; denial of humanitarian relief; killing journalists; forcible transfer of population; perfidy; attacks against persons hors de combat; and many more. This piece will instead focus on genocide.
Evidence of genocide in Gaza
Many reports and experts have determined that what is happening in Gaza is genocide. This includes international human rights organisations such as Human Rights Watch; UN experts (see also here); genocide scholars (see also here, here, here and here as only some examples); and even Israeli human rights organisations.
Significantly, on 23 September 2025, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel (mandated by the UN Human Rights Council), issued an extensive report dedicated to assessing whether genocide is being committed by Israel in Gaza.
The report walks methodically through the law, the facts, and then applies the law to the facts, ultimately determining that Israel is committing genocide, that genocidal intent exists, and that leaders are committing direct and public incitement to genocide.
The report details evidence from two years of investigation, referring in detail to actions also previously assessed by organisations, experts and scholars to determine that Israel is committing genocide. These actions include killing members of the group: extensive killing of civilians (including children), who make up the majority of those killed in Gaza, thereby indicating that the attacks are not self-defence nor justified by military necessity or proportionality (at the time of writing, almost 65,000 people have been killed). People have been killed by bombing and shooting.
Starvation is being used as a method of warfare, and is also a significant component of the genocidal conduct. Many Palestinians have died from starvation, malnutrition, thirst or disease. This is due to the denial of food, water, sanitation and healthcare to the Palestinians in Gaza. This amounts to the genocide crime of deliberately inflicting conditions of life calculated to bring about the group’s physical destruction, and are acts that my research on previous genocides has determined is a key part of the genocide process.
The genocide crime of causing serious bodily or mental harm is also being committed. Over 163,000 injuries have been reported from the violence, and the health impacts of malnutrition will be long-term. Reports demonstrate the significant trauma experienced by residents of Gaza from the ongoing violence, death and fear of death.
Israel is also imposing measures intended to prevent births, the fourth crime of genocide. This is carried out through systematic sexual and gender-based violence, and substantial harm to the reproductive capacity of girls and women due to the starvation and lack of sanitation and healthcare. The destruction of maternal healthcare has increased the number of miscarriages and childbirth complications. The Commission of Inquiry highlighted an attack on a fertility clinic that contained over 4000 embryos.
As the Commission notes, these crimes all amount to a pattern of conduct that demonstrates genocidal intent (see, e.g., Krstić Appeal Judgment paras 33-34; Bosnia v Serbia paras 370-376).
This is the unique element of the crime of genocide: that the crimes must be committed with the intent to destroy, in whole or in part, a racial, ethnic, religious or national group. The International Court of Justice has determined (para. 45) that the Palestinians are such a protected group. The pattern of conduct demonstrates an intent to destroy this group, in whole or in part.
Genocidal intent is also evidenced by direct statements by Israeli civilian and military leadership. Since October 2023, Israeli civilian and military leadership have made express statements about the intention to deny Palestinians necessities of life, erase Palestine from the map, and destroy Palestinians. Such statements have been echoed by community members such as journalists and soldiers.
These statements also amount to the crime of direct and public incitement to genocide. The Commission of Inquiry report focuses on President Isaac Herzog, Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant as inciting genocide, but recommends investigation into other Israeli leaders.
Consequences for individuals
The Office of the Prosecutor (OTP) of the ICC has been investigating the Situation in Palestine since March 2021. Israel is not a state party, but Palestine is, which means the ICC has jurisdiction over crimes committed in the territory of Palestine.
In November 2024, the ICC issued arrest warrants for three Hamas leaders, for war crimes and crimes against humanity including hostage taking, murder and rape. Two of those leaders have since been confirmed killed. The arrest warrant for the third Hamas leader, Mr Mohammed Diab Ibrahim Al-Masri, known as ‘Deif’, remains active.
At the same time, the ICC also issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and then Defence Minister Yoav Gallant, for war crimes and crimes against humanity committed from 8 October 2023 onwards. These charges cover the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution and inhumane acts.
These warrants issued by the ICC may be amended at any time in the pre-trial process if the OTP requests additional charges be added. The Commission of Inquiry recommends (as I have been doing for some time) that the OTP investigate adding genocide charges.
All individuals mentioned in this piece who are subject to arrest warrants by the ICC are either dead (Hamas leaders) or remain at large. It is the responsibility of member states of the ICC to surrender individuals subject to an ICC arrest warrant, as part of their obligations under the ICC’s founding treaty, the Rome Statute..
Consequences for States
States have been put on notice since at least January 2024 that there was a serious risk of genocide, and now the situation is unfortunately far beyond a mere risk.
As noted above, state parties to the 1948 Genocide Convention are obligated to prevent and punish genocide. South Africa has commenced proceedings against Israel in the ICJ, alleging breaches of Israel’s obligations under the Genocide Convention. Nicaragua has begun proceedings against Germany for its military, financial and political support of Israel, alleging violations of IHL and the Genocide Convention. The latter case will be interesting to observe how the Court rules on the obligations of third states.
For Australia, its obligations under the Genocide Convention, IHL, the Arms Trade Treaty and the Rome Statute are significant. They include the obligation to cooperate with the ICC in its investigations and surrender any wanted persons who arrive on Australia’s territory. Acting to prevent crimes also means ceasing any activity that may be contributing to the criminal violence being committed in Gaza, such as the provision of weapons or military equipment (an obligation under the Arms Trade Treaty). It should also mean enacting sanctions against Israeli individuals and entities that are contributing to the commission of human rights abuses in Palestine.
If Australia does not meet its international obligations, it could be subject to action before the ICJ; action from the ICC’s Assembly of States Parties; action by UN bodies; or ‘naming and shaming’ from UN entities (which it notably has been in the most recent report of the UN Special Rapporteur on Palestine). It could also risk isolating itself from the international community (including allies) in support of upholding international law.
The contents presented in both this article and the article authored by Mark Friedgut, are the responsibility of the respective authors, and Brief does not assume any responsibility for them.
