Israel is committing genocide beyond a shadow of doubt, and all states party to the Genocide Convention “have an obligation to prevent and punish genocide,” says Dr. Melanie O’Brien, a renowned scholar of International Law, in the interview that follows. O’Brien is Associate Professor of International Law at the University of Western Australia; President of the International Association of Genocide Scholars; and Visiting Scholar at the University of Minnesota Human Rights Law Center.
C. J. Polychroniou: The two major international courts, the International Court of Justice (ICJ) and the International Criminal Court (ICC), though they differ from one another, both exercise jurisdiction over the issue of genocide. The ICJ can consider whether a state has committed genocide under the UN Convention of the Prevention and Punishment of the Crime of Genocide but cannot consider other crimes, such as war crimes and crimes against humanity. The ICC, on the other hand, prosecutes genocide committed by individuals but it also has jurisdiction over other crimes, like the ones mentioned above. Now, in January of last year, the ICJ ruled that the claim that Israel is committing genocide in Gaza was “plausible,” although an actual verdict is not expected until probably the end of 2027. Much later in that same year, in late November to be exact, the ICC issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, together with a former Hamas commander, citing allegations of war crimes and crimes against humanity on the basis of “reasonable grounds.” In addition, a report that was released in March 2024 by the UN special rapporteur on the situation of human rights in the Palestinian territories also accused Israel of violating at least three of the five acts listed under the Genocide Convention. Since then, we have seen an increasing number of international law experts, genocide scholars such as Israeli-born and former IDF soldier Omer Bartov, and international human rights organizations making the case that Israel is indeed committing genocide in Gaza. Can you spell out the legal definition of genocide as found in the Genocide Convention and then tell us how the the “plausibility” standard applied by the ICJ compares to the “reasonable grounds” standard used by the ICC to issue arrest warrants?
Melanie O’Brien: The 1948 Genocide Convention defines genocide as a list of five crimes committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. The crimes are: killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, imposing measures intended to prevent births, and forcibly transferring children to another group. This is the same definition that is found in the Rome Statute of the International Criminal Court.
The International Court of Justice (ICJ) adjudicates disputes between states and therefore is a court for determining state responsibility for wrongful acts. The International Criminal Court (ICC) prosecutes and judges individuals accused of committing international crimes (war crimes, crimes against humanity, genocide, aggression). Thus, by their nature, these two courts have different standards applicable in their processes. The ICC follows common standards of proof found in domestic criminal law systems around the world. The “reasonable grounds” to believe an individual has committed a crime, which is required for the issuance of an arrest warrant, is a lower standard than the standard required to convict that same individual, which is “beyond a reasonable doubt.” The concept of “reasonable grounds” to believe means that, to obtain an arrest warrant, there must be sufficient facts and circumstances that would make a reasonable person believe the suspect has committed a crime.
The standard of “plausibility” applied by the ICJ is a standard used in the initial stages of a case. Before a case goes to the merits stage (where the Court would determine if a state has breached its international law obligations), there are procedural actions that can be taken by the parties to the case. One is the request for provisional measures, usually made by the state that has brought the case to the Court. The idea behind provisional measures is to freeze the situation as it is (i.e., so it does not worsen). The legal terminology used by the Court at this stage is that it decides whether it should issue an order to protect rights. This does not mean “human rights," but general “rights” under law that may be claimed by the state that is asking for these measures. At the merits stage, the Court will have to make a definitive determination, but at the provisional measures stage, the standard is lower. The Court must only determine that it is “plausible” that there are rights and that those rights need preserving before the merits stage is reached. If so, the Court will issue provisional measures orders that certain conduct be or not be carried out. Such an order has no impact on whether the case progresses to the merits stage or on the decision at the merits stage. In the case of South Africa vs. Israel, the Court agreed that there was a need to issue orders to protect the plausible rights of Palestinians to be protected from acts of genocide. At the time it issued these orders in early 2024, the ICJ did not state that Israel was committing genocide, but that there was a serious risk of the situation deteriorating. Part of the orders was for Israel to provide unhindered humanitarian aid to Palestinians, including through land crossing points.
C. J. Polychroniou: Is genocide an event or a process? And with that in mind, is Israel, in your own view, carrying out a genocidal campaign in Gaza?
Melanie O’Brien: Genocide is a process, not an event. It does not take place in one day or over a few days. It may be weeks, months, or even years. The process evolves through phases of discrimination and violations of other human rights, eventually escalating to the violation of the right to life, as the target group is killed or subject to conditions of deprivation.
When we are considering the situation in Gaza, we must look at what happened before October 7, 2023. Human rights organizations and the UN have long noted the situation of apartheid against Palestinians, and significant human rights abuses, with discrimination against Palestinians rife. This conduct should be taken into account and considered in the early stages of genocide, with the violence escalating from October 8, 2023, to encompass four of the crimes of genocide (killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, imposing measures intended to prevent births). Israel has killed Palestinians through bombing, explosions and shooting. They are also causing the deaths of Palestinians through starvation and disease, a result of the conditions imposed on Gaza by Israel, denying food, water, medicine and healthcare. Putting people into concentrated locations is a guarantee that communicable diseases will spread, and with no healthcare to treat such diseases, with people’s immune systems compromised from malnutrition, deaths are inevitable. There has been reproductive violence as part of this campaign, with significant impact on women and babies/children, with an increase in miscarriages and the bombing of healthcare facilities, including maternity hospitals and fertility clinics. The entire situation causes physical and mental harm to Palestinians, as over 150,000 injuries have been sustained, and people are living in a situation of fear, starvation and death. There are also reports of torture (including sexual violence) of Palestinians detained by Israeli authorities. All of this conduct amounts to genocidal acts, and as a pattern of conduct, it also demonstrates an intent to commit genocide.
C. J. Polychroniou: Israel has claimed self-defense for its military and outrageously disproportionate response in Gaza, which has resulted (so far) in the killing of over 61,000 Palestinians and more than 151,000 wounded, forced replacement, and Gaza’s entire infrastructure virtually destroyed. Are there any legal defenses for war crimes and genocide under international law?
Melanie O’Brien: There is no excuse or reason for committing war crimes, crimes against humanity or genocide under international law. While there may be arguments from individuals in a criminal court in relation to their own criminal culpability, in terms of the state responsibility, there is no defense against committing international crimes. Self-defence must be proportionate and involve military necessity, and it must comply with the laws of war. Israel’s response to the horrific attacks of October 7, 2023, is disproportionate, does not demonstrate military necessity, and does not comply with the laws of war. Israel’s actions amount to war crimes, crimes against humanity, and genocide.
C. J. Polychroniou: Israel has targeted Gaza’s agricultural sector, destroying most of the local food systems, and weaponized aid to the point that there is mounting evidence of famine. What does international law say about using starvation as a weapon of war? Is it a matter of war crime or genocide?
Melanie O’Brien: It is prohibited to use starvation as a weapon of war. The laws of war require the provision of humanitarian aid in a timely manner and of sufficiency to ensure the survival of people. This is not occurring in Gaza, where people are malnourished and starving to death. They are also deprived of water, shelter and healthcare. This conduct could be prosecuted as a war crime, crime against humanity or genocide.
C. J. Polychroniou: One final question. What are the obligations of third states to prevent and punish genocide?
Melanie O’Brien: States party to the Genocide Convention have an obligation to prevent and punish genocide. The ICJ has said that the obligation to prevent arises with “serious risk” of genocide. That Court has already declared that there was a “serious risk” of genocide in Gaza in January 2024, therefore states were on notice at least from that point on that this risk existed and should have taken immediate action. There is no strict requirement as to what action a particular state must take. This is because there are many different acts a state could take to prevent genocide, and because different states will have varying ability to prevent genocide, depending on where it is being committed. For example, in the case of Gaza, the United States could have significant impact to prevent genocide, given its close relationship with Israel (e.g., by stopping the sale of arms to Israel). Whereas a country that is geographically distant and not a close ally would have less impact and therefore lower requirements to act on prevention. There is also no requirement that a state’s action to prevent are successful; as long as they take action, they are complying with their requirements.
The requirement to punish genocide can be carried out by third states through prosecuting offenders in their domestic courts. This requires states to ensure they have domestic laws that enable the prosecution of international crimes even if these crimes were committed in another country. Third states can also fulfil their obligation to punish genocide through supporting international criminal courts and tribunals. For example, by becoming a state party to the ICC and actively supporting the work of that court to prosecute offenders. The ICJ has held that the obligation to punish includes a duty to cooperate with international courts and tribunals, including through extraditing offenders under an arrest warrant by those courts. There is a general obligation to prosecute or extradite perpetrators of international crimes, including genocide, where a state should either prosecute that offender or extradite them to another country or an international court for prosecution.
