Genocide and the False Narrative

Throughout the current conflict in the Middle East we have heard a ceaseless chorus of claims of “genocide” allegedly being perpetrated against Gazans. We have descended into an Orwellian nightmare. We have the brain washing bleating of “genocide” resembling the “four legs good two legs bad” metaphor from Animal Farm and the fact inversion and reverse engineered legal sophistry resembling 1984. The common feature of those asserting the genocide mantra is their total lack of scholarly credibility on the subject, which has also been a pronounced deficiency in the discussions of “war crimes” and self-defence.

This area of international law is a distinct and specialised area. There is no point looking for expert commentary from conveyancing or even human rights practitioners. In some ways this would be like asking a podiatrist to do brain surgery. In relation to genocide or the laws of armed conflict, to speak authoritatively you need to have studied the law formally. In that process it is not sufficient to just read a convention. You need to study the companion aspects of legal interpretation which includes the travaux preparatoires (preparatory work), jurisprudence of tribunals, state practice, opinio juris (eg the belief by states that a certain practice is legally obligatory evidenced by statements, diplomatic correspondence and decisions of national courts). It is also very relevant as to what scholarly works of research you have published and whether you have had experience as a reflective practitioner applying law to real circumstances, trained military forces in the law and considered the content of military manuals.
As an example of what is involved, the ICRC study on state practice, including a deep analysis of military manuals, runs to over 4,000 pages. The ICRC customary law of armed conflict study runs to 621 pages. Often you will need to examine documents and proceedings in other legally valid languages such as French. Most of the people who make such “definitive” statements or opinions on these issues have not come close to this level of expertise.

The truth is that this genocide mantra is a deliberate strategy by Iran and its proxy galaxy of terror organisations bent on the destruction of Israel to flip the Jewish narrative of the Holocaust that helped amplify the need to recreate the State of Israel. A Holocaust, it should be emphasised, that the Palestinian leadership of that period, in the form of Haj Amin Al Hussein and his team, were fully complicit in.

The term genocide was introduced as a purely legal concept coined by a Jewish Polish lawyer Raphael Lemkin who fled the Nazis in WWII. It was first litigated in the Nuremberg Tribunal process at the conclusion of the war.  It is a criminal not a civil charge and is extremely difficult to sustain. The standards of proof evolved from the Nazi case study of the demonstrable and well documented intent, such as exhibited in the proceedings of the Wannsee Conference in 1942, where the industrial scale details of the “final solution” were thrashed out. In the only genocide case in which the International Court of Justice (ICJ) has handed down final judgement so far, concerning the war in Bosnia, after 14 years the ICJ finally determined this standard had not been satisfied (it did find an act of genocide had occurred at Srebrenica but that it was not proven that Serbia as a state was responsible).

Proving a charge of genocide involves firstly establishing the dolus specialis or specific intent. This means there must be clearly and specifically detailed evidence that describes the intent to destroy in whole or in part a “national, ethnical, racial or religious group”.  It must then be established that actions were carried out in practice and that the intent determined the nature of the actions. The ICJ has stated that the overall standard of proof required for this charge is that the evidence must be fully conclusive, compelling and leaving no reasonable doubt about the perpetrator’s intent. It can only be inferred from “a pattern of conduct” if this is the only reasonable inference that can be drawn therefrom.

Judge Nolte of the ICJ mused on this point in the preliminary hearing of the case brought against Israel by South Africa, even though it was not for determination, that “I am not persuaded that South Africa has plausibly shown that the military operation undertaken by Israel, as such, is being pursued with genocidal intent.” He also noted that “The information provided by South Africa regarding Israel’s military operation is not comparable to the evidence before the Court in The Gambia v. Myanmar in 2020” a reference to the extensive documentation and volume of material in that case.

It is essential to refer to the preparatory work for the Genocide Convention to ascertain the legal determinants. The Convention was not only drafted in the aftermath of the Nazi Holocaust but also in the context of a global, large scale conventional war. They were conscious of the massive loss of life consequent upon the Allies simply fighting that war. The crucial paragraph here is the following:

“[t]he infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide. In modern war belligerents normally destroy factories, means of communication, public buildings, etc. and the civilian population inevitably suffers more or less severe losses. It would of course be desirable to limit such losses. Various measures might be taken to achieve this end, but this question belongs to the field of the regulation of the conditions of war and not to that of genocide.”

Israel’s stated goals, in what is a clear war of self-defence, are the elimination of Hamas and recovery of hostages. These are legitimate military objectives and the means by which it achieves them must be assessed under the laws of armed conflict relating to targeting not the Genocide Convention. The other lie that has been perpetrated is that the ICJ in the preliminary hearing of the South African Genocide action against Israel found a “plausible case of genocide” had been established. The President of the ICJ at the time, Joan Donoghue, has completely dismissed this claim stating unequivocally that “The Court did not decide that there was a plausible genocide”, and this is borne out by a reading of the clear words of the ruling and separate judicial statements. That was a procedural hearing to determine threshold matters relating to the ICJ process and did not at all consider the merits of the case. If they had believed there was a clear and obvious genocide occurring and that Israel was not fighting a war of self-defence they would have ordered an immediate halt to operations as they did in the recent Ukraine – Russia case. The next procedural step in the case has now been delayed to January 2026 due to the failure by South Africa to meet its procedural obligations.

Even the deeply legally flawed warrants by the International Criminal Court (ICC) did not cite the crime of genocide. It is interesting to note that these warrants have now been sent back to the Pre-Trial Chamber, after a successful appeal by Israel, to deal with the jurisdiction issue. Neither the delay in the ICJ nor this Appeal Court decision by the ICC Appeal Court have been reported in the media as opposed to the constant false assertions of “genocide”.

It is a strange genocide indeed where the alleged perpetrator has engaged in an extensive vaccination program throughout Gaza and worked to enable the operation of 17 of Gaza’s hospitals, the deployment of 14 Field Hospitals and three Hospital Ships. Israel has also Enabled 9 mobile medical clinics and the introduction of 134 new ambulances and evacuated over 410 more serious medical cases for higher level treatment. If this were a genocide it is even stranger that extensive food relief has been delivered with the only impediment to that process being the ongoing violence of Hamas in pursuing its business model of looting supplies to help pay its terrorist operators.

The world should have a discussion about genocide in the Middle East but it needs to focus its attention on Iran and its proxies, Russia and the Sudanese government.

Mike Kelly is a former ADF soldier, Labor government minister and the co-convenor of Labor Friends of Israel.