Just days after the Israeli bombardment of the Gaza Strip began, a dire warning sounded.
United Nations experts have sounded the alarm that Palestinians in Gaza are at risk of genocide. The Israeli army struck the coastal enclave, forcing most of the population from their homes and imposing a strict blockade barring the entry of food, water and other supplies.
Since then, more warnings have followed, alongside calls for the international community to act.
Today, as the International Court of Justice (ICJ) prepares to hear a case alleging that Israel is committing acts of genocide in Gaza, global attention is once again focused on what can – or should – be done to end war and prevent crimes like genocide.
South Africa, the country which brought the case to the ICJ, cited in its decision an “obligation to prevent genocide” as a signatory to the UN Genocide Convention – which experts consider as a crucial step in such cases.
“Genocide is seen as having, under international law, this special character that affects everyone,” said Mark Kersten, assistant professor of criminology and criminal justice at the University of the Fraser Valley in Canada.
“What South Africa is saying, among other things, is that it has an obligation to prevent genocide under the Genocide Convention and therefore an obligation to do something about what it considers it a genocide in Gaza,” he told Tel Aviv Tribune.
The Convention
Signed in 1948 in the aftermath of World War II, the Convention on the Prevention and Punishment of the Crime of Genocide – the Genocide Convention – “codified for the first time the crime of genocide”.
This “signified the international community’s commitment to ‘never again’ after the atrocities committed during the Second World War,” the UN says on its website.
Today, 153 countries are parties to the convention, confirming “that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish “.
States can fulfill their obligation to prevent genocide in several ways, including by appealing – as South Africa has done – to the ICJ, the UN’s highest court.
In its filing, South Africa argued that Israel not only “failed to prevent genocide” but also “engaged, is engaging and risks further engagement in acts of genocide against the Palestinian people in Gaza.”
“The acts in question include the killing of Palestinians in Gaza, causing them serious physical and mental harm and inflicting upon them living conditions likely to lead to their physical destruction. These acts are all attributable to Israel, which failed to prevent genocide and is committing genocide in clear violation of the Genocide Convention,” the document states (PDF).
“South Africa is fully aware of the particular weight of responsibility when bringing proceedings against Israel for violations of the Genocide Convention. However, South Africa is also acutely aware of its own obligation – as a state party to the Genocide Convention – to prevent genocide.
This goes further than other genocide cases previously heard by the court, Kersten said.
An important precedent, however, was a case (PDF) brought by The Gambia in 2019. It claimed that Myanmar was committing genocide through actions “intended to destroy” the predominantly Muslim Rohingya minority group “in whole or in part.”
The proceedings are ongoing and Canada, France, the United Kingdom and other countries filed a joint petition late last year in support of Gambia’s case.
“This case confirms that any contracting party can bring an action under the Genocide Convention,” said Amanda Ghahremani, an international criminal lawyer and researcher at the Center for Human Rights at the University of California at Berkeley, United States. “This is not necessarily a matter between the states directly involved. »
“Serious risk” threshold
In 2007, the ICJ also defined when states can act to fulfill their obligation to prevent genocide, noting that their responsibility does not begin only “when the commission of genocide begins.”
“This would be absurd, since the very purpose of the obligation is to prevent, or attempt to prevent, the occurrence of the act,” the court said (PDF) in a ruling in a case brought by Bosnia -Herzegovina against Serbia-Montenegro. on crimes committed in the former Yugoslavia.
On the other hand, the obligation arises “at the moment when the State becomes aware, or should normally have been aware, of the existence of a serious risk that genocide will be committed”, explained the court.
“From this moment, if the State has means capable of having a deterrent effect against persons suspected of preparing genocide or reasonably suspected of having a specific intention… it has the duty to use these means depending on the circumstances. permit.”
In the Gaza case before the ICJ, South Africa asked the Court to take interim measures, including urging Israel to end its attacks on the enclave, to punish public incitement to genocide and to lift restrictions on the delivery of aid to Palestinians in the territory.
Kersten explained that South Africa does not need to immediately prove that genocide is taking place for these measures to be approved, but rather must demonstrate that there is “a serious risk of genocide” – a lower threshold.
“We can differ on whether Israel, as a state, is committing genocide or has committed genocide,” he said.
“But we can say with certainty, based on all the declarations and all the violence, the famine, the siege, the blockade, the expulsions and all these things, that there is a serious risk of genocide, and if there is a serious risk of genocide, the duty to prevent it exists.
“And that is, to me, one of the most powerful things South Africa has said.”
Political will and coherence
At the same time, if a state does not comply with an ICJ decision, the other side can go to the UN Security Council to enforce the decision, Ghahremani explained.
But even this route does not guarantee compliance with the rules. Ghahremani noted that the court last year issued (PDF) interim measures in the Ukraine v. Ukraine case. Russia, ordering Moscow to immediately suspend its military operations while it examines kyiv’s case. Russia, which holds veto power in the Security Council, rejected the move.
“In reality, you will see that states do not respect court decisions, but it is still very important that an international institution like the ICJ judges these cases and publicly validates international standards,” she told Tel Aviv Tribune.
Ghahremani acknowledged that Israel’s “consistent disregard for international law” over the past decades “does not present an accurate picture of the international legal system and the enforcement capabilities of international institutions.” Like Russia, the United States – Israel’s main ally – also has a veto in the Security Council.
“There have been numerous legal interventions in the international sphere related to Israel’s conduct towards the Palestinians, and yet Israel continues to violate international law. When you see this level of impunity… you lose a lot of hope that the international legal system will be able to stop and prevent genocide, among other atrocities,” she said.
Nonetheless, she said lawyers and rights advocates persisted in finding new and creative ways to use international law to achieve justice and accountability.
“What interests me here, with this case (of South Africa), is to see how the precedents from the situations in Ukraine and Myanmar – where there was more political will – are now used in this context,” explained Ghahremani.
“I’m very curious to see how this will play out and whether we’re going to see consistency in the positions that states take and in the positions of these international institutions… It will also be very revealing and enlightening for all of us. »
