On 18 November, Brief published an article titled Genocide in Gaza in international law.
Brief now publishes, 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.
The article titled Genocide in Gaza in international law is a one-sided polemic against Israel – asserting that it has committed genocide, the worst of all possible crimes, alongside an assortment of heinous war crimes and crimes against humanity.
In support of those assertions, the article relied upon reports which have been discredited and rebutted – reports which relied on “evidence” emanating primarily from Hamas, or its supporters, or from NGOs with well-documented institutional anti-Israel bias (see, for e.g., Debunking the Genocide Allegations: A Reexamination of the Israel-Hamas War from October 7, 2023 to June 1, 2025, Scholars for Truth about Genocide, The Genocide Scholars Who Can’t Define Genocide, Murky Waters: How HRW’s Report Obscures the Reality of Water Access in Gaza, From apartheid to genocide: B’Tselem’s new gambit, Israel Categorically Rejects the Libelous Rant Published Today by the Commission of Inquiry, U.N. Can’t Handle the Truth From Natasha Hausdorff, Rebutted: UN Inquiry Report Falsely Accuses Israel of ‘Genocide’ and Michal Cotler-Wunsh).
The words used by John Spencer, former U.S. Army Major and one of America’s leading experts on urban warfare, in relation to a similar article, are equally apposite here: “although the author cites the claims of misguided human rights groups, academics, and a biased United Nations commissioned study, there are many more academics, military professionals, and legal experts who have clearly stated that Israel’s actions in Gaza do not meet any standard for genocide.”
Thearticle cites none of the substantial evidence that contradicts its conclusions (see, for e.g., I Am a War Scholar – There Is No Genocide in Gaza, Israel is Not Committing Genocide: Exposing the Distortion of Law and Truth, Amnesty International’s ‘Genocide’ Smear Against Israel and When Military Targeting of Hamas Combatants Was Misrepresented as Genocide: An Open-Source Data Analysis with a Focus on Israeli Airstrikes in the Gaza Urban Warfare, 2023–2024).
Instead, while noting that genocide requires intent to destroy a protected group “as such”, the article baldly asserts that Israel’s “pattern of conduct demonstrates an intent to destroy this group” and that “Genocidal intent is also evidenced by direct statements by Israeli civilian and military leadership.”
The article is wrong in both fact and law.
The selective, de-contextualised statements adduced fall far short of the high international legal threshold for genocidal intent. Statements plainly referring to Hamas—a genocidal terrorist organisation that Israel has not only the right but the duty to defeat—cannot sustain a genocidal inference against Israel. Israel’s position, unambiguously stated by the prime minister, the president, the defence minister, and the IDF spokesman was and is that this “war is against Hamas – not the people of Gaza.”
Heated political rhetoric, without evidence of corresponding operational policy, cannot satisfy the requirement of dolus specialis. The specific intent required for genocide cannot be inferred from “mere vague or indirect suggestion.” The US did not commit genocide when it destroyed ISIS, even though President Obama spoke of the war as “eradicating a cancer.” While Netanyahu described the battle in Gaza as being between “the children of light and the children of darkness”— a quote Amnesty deemed “dehumanizing”— his description was similar to Franklin D. Roosevelt’s 1941 assertion of “victory of justice and righteousness over the forces of savagery and barbarism.” Such rhetoric does not demonstrate genocidal intent.
Common sense likewise dispels the notion that Israel intended to destroy the Gazan population. Had that been its intent, it could have done so easily on a single afternoon, from the air, without risking a single soldier. The fact that Hamas remains an active fighting force more than two years into the conflict, in and of itself, undermines the article’s claim that Israel’s “pattern of conduct” evidenced genocidal intent.
In fact, the evidence demonstrates the opposite intent.
First, Israel took unprecedented measures to protect Gazan civilians. As Spencer noted, based on his own observations in Gaza, “Israel has taken more measures to reduce civilian harm than any military in history, including layered warnings, evacuation corridors, daily pauses, roof knocking, safe zones, and an unprecedented combination of precision fires and restrictions on ground manoeuvre that often put its own soldiers at greater risk to protect civilians. I have studied and documented urban warfare for decades. No other military has attempted to do what the IDF has done in Gaza.” Similar assessments have been made by numerous other military experts, including multiple retired US generals, admirals, and military and legal specialists who have observed IDF operations in Gaza first-hand (see, for e.g., The October 7 War: Observations, October 2023 – May 2024, Pre-Trial Chamber I in ICC-01/18 and Those Who Criticize Israel for Using Indiscriminate or Excessive Force in Gaza Are Wrong).
British Military Expert, Col (Ret.) Richard Kemp CBE, former commander of British Forces in Afghanistan, Iraq, the Gulf War, Bosnia, and Northern Ireland who, like Spencer, has spent time on the ground in Gaza, has also observed that “No country in history has ever shown more concern for civilians, and has ever done more to avoid civilian casualties, than Israel.”
Such conduct is entirely inconsistent with “intent to destroy” the Gazan population.
Second, as noted by Spencer, “Israel did more to feed, house, vaccinate, provide medical care,” and to prevent harm to the civilian population in Gaza, than any nation in history has done in analogous circumstances. “Wanting to destroy your enemy is not genocide. It is war. War is not illegal, and in some cases it is necessary.” In facilitating such aid to Gaza, notwithstanding extensive evidence that Hamas hijacks, diverts, exploits and benefits from such aid, Israel has in fact exceeded its obligations under International Law.
A State bent on genocide does not facilitate the welfare of the population it intends to destroy.
Third, available analyses indicate that Gaza’s civilian-to-combatant casualty ratios are comparatively low by modern urban warfare standards (see, for e.g., Israel Has Created a New Standard for Urban Warfare. Why Will No One Admit It?, Misplaced moral outrage on civilian casualties, Amnesty International seeks to expand the concept of genocide, When Military Targeting of Hamas Combatants was Misrepresented as Genocide: An Open-Source Data Analysis with a Focus on Israeli Airstrikes in the Gaza Urban Warfare, Hamas Casualty Reports are a Tangle of Technical Problems, Gaza by Numbers, the Real Numbers and How Hamas won the (dis)information war: the manipulation of Gaza casualty data). This fact is all the more significant given that Hamas deploys civilians as human shields and that “Hamas fights among civilians and designs its tactics to ensure Israel kills as many civilians as possible. The IDF on the other hand have become world leaders at attacking an enemy while minimising the extent of civilian casualties.”
Again, this evidence contradicts the claim of genocidal intent. It proves the very opposite.
In pressing its genocide calumny, the article omits the critical factual matrix that governs the legal assessment of proportionality, distinction, and military necessity — facts that form the sine qua non of any proper inquiry into genocidal intent during a war. Compliance with these international laws of war is not judged on the basis of outcomes alone, but also on factors such as intelligence, effort and precaution. Hamas intentionally built one of the world’s largest tunnel networks beneath residential areas, hospitals, schools and mosques, and used protected sites as command centres and weapons depots. These facts are extensively documented and undisputed by serious military analysts. Such tactics inevitably result in civilian harm, and are a far more plausible explanation of such harm than the legally untenable suggestion that Israel intentionally inflicts civilian harm as a means of group destruction.
The ICJ has repeatedly held that genocidal intent can be established only where it is the sole reasonable inference from a State’s pattern of conduct (Bosnia v. Serbia ICJ Rep. 43 (2007) at [373] (“for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.”); Croatia v. Serbia ICJ Rep. 2015, paras. [147]–[148]). No reasonable observer could argue that Israel’s war of self-defence against Hamas, a terrorist organization explicitly dedicated to its annihilation, constitute genocide under this, or indeed any, standard.
Indeed, Israel fought a war of self-defence that it did not seek, or want, while trying to rescue hostages brutally kidnapped to Gaza’s tunnels, against a genocidal death cult that promised to repeat 7 October again and again – that brazenly declared that 7 October was just a ‘rehearsal’ – and that still today calls for the annihilation of Israel: on 6 December 2025, Hamas leader Khaled Mashal, said in the keynote address that the Al-Aqsa flood – i.e. 7 October – “with its might has prepared the international arena,” and “this is our opportunity to build on this in order to expel this entity [Israel] from our homeland, and from the international stage.”
But rather than condemn Hamas’s genocidal massacre of 7 October, or acknowledge that the war could have ended in 2023 had Hamas returned the hostages and surrendered, the article directs blame at Israel for defending itself against a terrorist death cult that openly seeks to murder all Israelis and Jews, and that continues its call for the annihilation of Israel.
It is for these reasons that Michal Cotler-Wunsh, chief executive of the International Legal Forum, opines that the article is a dangerous example of the Orwellian inversion of fact and law.
As Stone and Rose have observed, the best available evidence “shows no Gaza genocide by Israel. It demonstrates only the rhetoric of a modern blood libel.”
The contents presented in both this article and the previous article authored by Dr O’Brien, are the responsibility of the respective authors, and Brief does not assume any responsibility for them.
