What I know about war and genocide

3 February 2024, Canberra Times, by Mike Kelly

I served for 20 years in the Australian Army where I was continuously involved in applying the laws of armed conflict directly and advising in the planning and conduct of operations, both Australian and coalition.

I have a doctoral thesis in these issues and have published two books and multiple scholarly refereed articles. I have trained military forces and appeared at multiple international conferences on these matters.

This has motivated me to share my thinking about the application lodged by South Africa with the International Court of Justice (ICJ) in its alleged “dispute” with Israel, regarding the genocide convention of 1948 (the convention) and its relevance to the current Israel-Hamas conflict.

With the intensity of the passions and information warfare being waged it is important to understand key facts.

For readers not familiar with the legal issues, the preparatory work on the convention, which legally guides the convention’s interpretation, clearly states “the 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.”

The convention arose from the post WWII Nuremburg military tribunal processes, and focusses on acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

The critical word is “intent”. To establish genocide a clear specific intention held by authorities and officials responsible for controlling the armed forces and security services, to achieve genocidal outcomes, must be proved. Then, there must be outcomes connected to that intent. This is a high bar.

This first phase of the current ICJ process relates only to the provisional measures sought by South Africa and whether a “plausible case” would support the rights asserted by South Africa. The plausible case test is a very low bar. It is not clearly defined but can be satisfied on the basis of factual assertions that are untested, and the inclination will always be to accommodate an application by a UN member state as part of the connection of the ICJ to the UN as a primarily diplomatic arbitration mechanism. The ICJ is not a criminal court.

The list of provisional measures South Africa sought included the cessation of military operations by Israel, taking all reasonable measures for the prevention of genocide, the rescinding of measures relating to the “expulsion and forced displacement from their homes” of Gazans and that would deprive them of humanitarian relief.

In its interim decision the court, as opposed to the call it made on Russia in the genocide case against it, did not order Israel to cease either its military operations or the evacuation precautions it has utilised. It would have been unconscionable if it had.

Cessation of military operations would have defied the settled international law of self-defence, enshrined in Article 51 of the UN Charter. It was Hamas that initiated a war of aggression on October 7, 2023, continues to fire rockets indiscriminately into Israel, continues to keep hostages captive, and poses an ongoing existential threat. Evacuation precautions are required under the laws of armed conflict.

The court in fact rejected all the specific terms sought by South Africa, did not refer at all to ceasefires, and issued its own formulation of interim measures. This enables Israel to continue to prosecute its war of self-defence.

The court simply reiterated the obligations that all states have under the convention, to “prevent” genocide, a clear indication that it does not accept the proposition that genocide has occurred and urged Israel to take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance.

It added the requirement to ensure the preservation of any evidence that might bear on the allegations, and supported the Israeli Attorney-General in his actions against any language that could incite genocide.

Israel is also required to provide a report to the ICJ in one month on the circumstances in Gaza.

Given that Hamas was not a party to the proceedings to answer for its clearly stated and repeated genocidal intent and acts, it was important that the ICJ also added, “The court deems it necessary to emphasise that all parties to the conflict in the Gaza Strip are bound by international humanitarian law.

It is gravely concerned about the fate of the hostages abducted during the attack in Israel on October 7, 2023 and held since then by Hamas and other armed groups and calls for their immediate and unconditional release”. Hamas has not complied with this.

The ICJ so far has not accepted any elements of the intent to commit genocide have been established. When it comes time to properly evaluate this, the figures on casualties cited by Hamas will no doubt be a focus for analysis.

Even if the total of these unverified figures were to be accepted, they do not include a breakdown of how many have been caused by the rocket misfires from Hamas and Islamic jihad, of which there have been at least 2000 to date.

The Al Ahli hospital casualties were caused by one of these, for example. The numbers also do not specify the Gazans directly killed by Hamas in reprisal for co-operation with the IDF, or those inflicted on Gazans defying Hamas orders not to flee combat locations.

Nor does it factor in Hamas’ human shield war crimes and those shot down while Hamas was purloining relief supplies. In particular it does not include the 10,000 Hamas and Islamic jihad combatants who have been killed as they continue their war of aggression.

The ICJ will have to weigh the context of a large-scale urban battle where the IDF is confronting 60,000 combatants (on the numbers asserted by Hamas), 482 kilometres of underground operational infrastructure and over 12,000 rockets fired indiscriminately at Israel. It is relevant that Hamas initiated a war of aggression and demonstrated the genocidal existential threat it poses to Israel.

Hamas’s tactics will be relevant including their routine use of human shields and their compromise of protected sites. The court will be required to have regard to the preparatory work on the genocide convention cited above, the history of urban conflict and the state practice in this respect.

It will also have to weigh the clear evidence of measures taken by Israel to provide humanitarian relief and medical support, and the precautions it has employed in the conduct of operations, which fly in the face of a genocidal intent.

The ICJ trial may take years. In the meantime the international community must unite to demand that Hamas end the fighting and comply with the ICJ call to release the hostages.

We must also do all we can to assist in an effective and verifiable humanitarian relief effort.

All our elected representatives should refrain from parroting Hamas propaganda in relation to this genocide claim, as there is little doubt that it will not be supported in the final outcome of this ICJ case. Such support only encourages Hamas to continue exploiting the human suffering of this conflict.