Israel committing genocide in Gaza says top legal scholar Melanie OBrien
The head of the world's largest academic association on genocide has declared Israel's actions in Gaza a genocide.
Dr Melanie O'Brien, president of the International Association of Genocide Scholars (IAGS), outlined her legal opinion in an interview with Middle East Eye, ahead of an upcoming episode of the Expert Witness podcast featuring leading genocide experts.
"Applying the legal definitions of genocide as found in the Genocide Convention and the Rome Statute of the International Criminal Court, I would determine that what is happening in Gaza constitutes genocide," O'Brien said.
"The definition involves acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. These include killing or imposing conditions meant to bring about physical destruction," she explained, referring to the definition of genocide under the Genocide Convention.
"What we are witnessing fits within that legal definition."
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O'Brien's view carries considerable scholarly authority and reflects the mounting recognition of Israel's war on Gaza as a genocide.
She presides over an association of over 700 scholars of genocide, and is the author of From Discrimination to Death: Genocide Process Through a Human Rights Lens.
Her case studies include the Armenian genocide, the Holocaust, the Cambodian genocide, the Srebrenica genocide, and the Rohingya genocide.
O'Brien, who is also an associate professor of international law at the University of Western Australia Law School, is one of a growing group of intellectuals and public figures who, in recent months, have declared Israel's war on Gaza to be unequivocally a genocide, despite the hesitancy of western governments to use the term.
British officials, including Prime Minister Keir Starmer and Foreign Secretary David Lammy, have consistently refused to use the word genocide, saying such a determination should be made by a competent court.
The Irish and Spanish governments have been the only western governments so far to call out Israel's actions as genocidal.
Former EU foreign policy chief Josep Borrell has also recently made the argument that Israel is committing genocide, as has the UN's former aid chief Martin Griffiths.
According to O'Brien, "Genocide either has occurred or hasn't - labels don't change the facts."
In her view, genocide is not only determined by a court ruling. Other actors can make informed assessments, such as scholars, legal experts, politicians and civil society.
"Scholars like myself apply legal definitions to the facts. Politicians play a crucial role in recognition, which historically has been important for mobilising international action."
Leading human rights organisations have reached the conclusion that Israel is committing genocide.
In December 2024, Amnesty International became the first major organisation to conclude that Israel had committed genocide during its war on Gaza, while Human Rights Watch concluded that "genocidal acts" had been committed.
Francesca Albanese, a lawyer and the UN's special rapporteur on Palestine, authored two reports last year suggesting that genocide was taking place in Gaza.
Israel's onslaught on Gaza has so far killed over 54,000 Palestinians, the majority of them women and children. Most of the enclave has been destroyed and almost all the population forcibly displaced several times over the past 20 months of conflict.
Israel's siege has brought most of of Gaza's 2.1 million civilians to the brink of famine, with a total blockage imposed between 2 March and 22 May and only limited amounts of aid allowed since the blockade has eased.
The International Court of Justice (ICJ) is currently hearing a case brought by South Africa in December 2023, accusing Israel of genocide.
A ruling by the ICJ, which is the UN's highest court, is expected to take several years.
Scholars and historians of the Holocaust have also labelled the Gaza conflict as a genocide, some as early as October 2023.
'The crime of crimes'
The legal framework for the definition and interpretation of the crime of genocide is derived from the 1948 Genocide Convention, as well as the international criminal law jurisprudence that followed, particularly cases before the ICJ and the ad hoc tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY).
It is one of three core international crimes, along with war crimes and crimes against humanity. But genocide is widely recognised as "the crime of all crimes".
In Article II, the convention states that "genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".
That might include:
- Killing members of the group
- Causing serious bodily or mental harm to members of the group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group
Proving a special intent to destroy, in whole or in part, a national, ethnic, racial, or religious group is what distinguishes genocide from other international crimes.
This part of the legal analysis of genocide is often the most difficult. But according to O’Brien, genocidal intent can be derived from verbal statements by Israeli political or military leaders as well as many other variables.
"Since early October 2023, Israeli leaders have made statements about destroying Gaza and starving its population - clear expressions of intent," O'Brien said.
'Importantly, even if self-defence is invoked, that does not justify genocide'
- Professor Melanie O'Brien
"We also see intent through patterns of conduct, including indiscriminate bombings, mass casualties, the destruction of healthcare and essential infrastructure, and the denial of humanitarian aid, all of which can fall under crimes listed under the Genocide Convention," she told MEE.
"The deliberate denial of water, food, medicine, shelter, and healthcare – all essential for life – points to genocidal intent. People are dying not only from bombings but also from starvation, malnutrition and untreated illnesses, particularly in overcrowded areas where disease spreads rapidly."
The Convention focuses on prevention, not just the prohibition of the crime of genocide, hence the importance of early warnings that the atrocity might be unfolding.
"Genocide is a process, not a single event," said O'Brien.
"We examine patterns over months or even years. In the case of Gaza, we’re not only talking about the recent 18 months, but also the long history preceding the October 7 attacks – years of persecution, discrimination, apartheid, and conflict."
Israel rejects accusations of genocide, and justifies its military operation in Gaza saying it has a right to self-defence. The Israeli army also claims it is abiding by international humanitarian law (IHL), or the law governing armed conflicts.
O'Brien says that Israel is in grave breach of international humanitarian law, and that its response to the deadly Hamas-led attacks of 7 October 2023 has been disproportionate.
"While Israel argues self-defence and military necessity, IHL requires that military attacks target only military objectives, be necessary, and be proportionate," she explained.
"Indiscriminate bombing, the targeting of refugee camps, hospitals and journalists – many of whom are protected under IHL – are serious violations. Israel's military response has been disproportionate to the October 7 attack, with over 18 months of bombing resulting in mass civilian casualties.
"Importantly, even if self-defence is invoked, that does not justify genocide," she said. "There is no legal defence for genocide under international law."
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