(JNS) Behind the veneer of dispassionate scholarship, Melanie O’Brien, an associate professor at UWA Law School, University of Western Australia, has published a one-sided polemic against Israel, asserting that it has committed genocide—the worst of all possible crimes—alongside an assortment of heinous crimes against humanity.

In support of this calumny, O’Brien relies upon articles and reports without disclosing that their allegations have been comprehensively rebutted and that their “evidence” emanates primarily from Hamas, its supporters or NGOs with well-documented institutional anti-Israel bias.

In the words of Michal Cotler-Wunsh, chief executive of the International Legal Forum, the article is a dangerous example of the Orwellian inversion of fact and law, enabled by decades of systematic hijacking, redefinition, inversion and weaponization of legal institutions and principles.

Equally apposite are the words used by John Spencer, former US Army major and one of America’s leading experts on urban warfare, in relation to a different misconceived article: “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.”

O’Brien cites none of these countervailing experts. Nor does she engage with the substantial evidence that contradicts her conclusions. She does not even acknowledge it. No counter-arguments are considered.

Instead, while noting that genocide requires the intent to destroy a protected group “as such,” she 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.”

She is wrong in both fact and law.

The selective, de-contextualised statements she adduces fall far short of the high international legal threshold for genocidal intent. Statements plainly directed at Hamas, a genocidal terrorist organization that Israel has not only the right but the duty to defeat, cannot sustain a genocidal inference. Israel’s position, unambiguously stated by the prime minister, the president, the defense minister and the spokesperson for the Israel Defense Forces, 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 United States did not commit genocide when it destroyed ISIS, even though former President Barack Obama spoke of the war as “eradicating a cancer.”

While Israeli Prime Minister Benjamin Netanyahu described the battle in Gaza as being between “the children of light and the children of darkness”—a quote the NGO Amnesty International deemed “dehumanizing”—his description was similar to former President Franklin D. Roosevelt’s 1941 assertion of “victory of justice and righteousness over the forces of savagery and barbarism.”

Such rhetoric does not infer genocidal intent.

Common sense likewise dispels the notion that Israel intended to destroy the Palestinian Arab population of Gaza. 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 O’Brien’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 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 firsthand.

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 inconsistent with “intent to destroy” the Gazan population. It proves the opposite.

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—all the more remarkable 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 her genocide calumny, O’Brien 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. No reasonable observer could argue that Israel’s military actions—directed against Hamas, a terrorist organization explicitly dedicated to its annihilation—constitute genocide under this, or indeed any, standard.

Israel did not commit genocide. It fought a war of self-defense 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 the atrocities of Oct. 7 again and again. (Indeed, it declared that Oct. 7 was just a “rehearsal.”)

Even now, the terror group calls for the annihilation of Israel: on Dec. 6, Hamas leader Khaled Mashal said in the keynote address that the Al-Aqsa flood (i.e., Oct. 7) “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 Oct. 7 or acknowledge that the war could have ended in 2023 had Hamas returned the hostages and surrendered, O’Brien directs blame at Israel for defending itself against a terrorist death cult that continued to attack Israeli civilians throughout the conflict and that continues its call for its annihilation.

That is not scholarship. It is Hamas propaganda. It is lawfare.

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.”

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