Legal Consequences for third States of Israel’s potential breaches of the Genocide Convention in the light of the ICJ’s Provisional Measures Orders in the South Africa v Israel case
Legal Opinion for the Arab Organisation for Human Rights in the UK Dr Ralph Wilde
22 April 2024
© Ralph Wilde 2024
SUMMARY (for the full legal opinion, see here)
The Arab Organisation for Human Rights has today launched a new legal opinion commissioned by the international law expert Dr Ralph Wilde.
The opinion explains the rights and duties of all states arising out of Israel’s violations of the Genocide Convention, including the commission of genocide itself, in Gaza. It is based on the position that Israel’s use of force in Gaza must end immediately in order, in part, to end these violations. All states are legally obliged to take positive action to end the violations of the Genocide Convention. They are also legally obliged not to recognize as lawful, or provide aid or assistance to, Israel’s use of force in Gaza, and to take positive steps to enable the exercise of criminal jurisdiction over individuals for the crime of genocide. Relatedly, all states have a legal right to invoke Israel’s violations of the Genocide Convention, and they can exercise this right to discharge their obligations to take positive action to bring these violations to an end. Specific examples of steps states must take are given, including: ending all support, including through the provision of arms, to Israel’s military; preventing nationals from travelling to Israel to serve in the armed forces; introducing travel bans and sanctions on Israeli officials involved in the genocide; and taking non-forcible countermeasures against Israel. How states can support both the current ICJ case brought by South Africa against Israel by participating in that case, and the ICC investigation into the situation in Palestine by providing financial assistance to the ICC, are also explained.
1. Introduction
1. This opinion explains the legal consequences for ‘third States’—all States other than, in this context, Israel and South Africa—arising out of Israel’s potential violations of the international law obligations concerning genocide, and, consequently, the commission of genocide crimes by individuals, in the light of the Provisional Measures Orders of the International Court of Justice (‘ICJ’) of 26 January 2024 (‘the 26 January Order’) and 28 March 2024 (‘the 28 March Order’) in the case brought by South Africa concerning violations by Israel of the 1948 Convention on the Prevention and Punishment of the Crime
of Genocide (‘Genocide Convention’) (‘South Africa v Israel’). The focus is, in particular,
on the legal position of States other than in circumstances where they are themselves directly legally responsible, on the basis of conspiracy and/or complicity, jointly with Israel in violating the international law obligations concerning genocide. The broader, more general legal matters addressed herein arise not on this basis, but because all States have rights and obligations consequent to Israel’s violations, regardless of whether or not they are also jointly responsible, with Israel, for these violations. Likewise, the focus is
only on the legal consequences for third States arising out of Israel’s violations in particular; the consequences arising out of violations of international law by other States, including on the basis of joint responsibility with Israel, are not addressed.
2. Obligations
2. Article I of the Genocide Convention stipulates that:
The Contracting Parties confirm 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 to punish.
Article II of the Genocide Convention, and customary international law, defines genocide
as:
any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
Article III stipulates that
The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.
3. Effectively, the Genocide Convention, and customary international law, contain two distinct sets of obligations, hereinafter collectively the ‘genocide obligations,’ borne by
States:
(1) In the first place, an obligation not to commit the five genocide-related acts stipulated in Article III of the Genocide Convention, hereinafter the ‘genocide
prohibitions’:
(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.
(2) In the second place, an obligation to prevent breaches of the foregoing genocide prohibition obligations by any other actor, and to ‘punish’ such commission, i.e. to ensure that individuals suspected of committing these acts are subjected to a process
of criminal justice (whether operated by themselves or other States/the ICC), hereinafter the ‘genocide suppression duties’. The latter, ‘punish’, obligation reflects the fact that individual criminal responsibility, in addition to State responsibility, for the five genocide-related acts stipulated in Article III also exists in international law, hereinafter the ‘genocide individual crimes’.
3. ICJ Provisional Measures Orders of 26 January and 28 March 2024
4. The effect of these two Orders is that the ICJ has determined, at the level of plausibility, that Israel’s use of force in the Palestinian Gaza Strip constitutes the commission of genocide. This characterization of the use of force as genocide has been done either in a totalizing sense, or on the basis that there are genocidal aspects to the use of force. To end this commission of genocide, the force must end, either because it is of its nature genocidal,
or because it is impossible to meaningfully disaggregate the genocidal and non-genocidal elements. In addition, more specifically, and to the same effect, the impediment to the provision of basic services and humanitarian assistance constituting a breach of the genocide prohibitions caused by the use of force is such that only an end to the use of force will end the breach.
5. The consequence of the foregoing is that it is the use of force itself that is illegal. In the same, totalizing manner that is arrived at from applying the jus ad bellum. It is unnecessary, then, to disaggregate this use of force, on the basis that some elements of it may be lawful, whereas other elements are illegal.
4. Consequences for third States 4.a. General position
6. Third States have a legal right and a duty to do, and a duty not to do, certain things, as a consequence of Israel violating the genocide obligations and, consequentially, individual genocide crimes being committed, and the presence of a real risk that these violations and crimes will continue and more will be perpetrated.
7. The effect of the ICJ’s determination is that States must proceed on the basis of a working assumption that Israel is violating the genocide obligations, and there is a risk that these violations will continue, and other violations will arise, and that the rights and obligations
they have in consequence, which will be elaborated on below, are engaged. Within this, the assumption must be that the violations potentially include the commission and the risk
of commission of genocide itself. And that Israel’s use of force as a general matter must end in order, in part, for this commission, and risk of commission, to end. Put differently, they must act on the assumption that Israel’s use of force is, in and of itself, a violation of the Genocide Convention.
8. In consequence, the obligations that third States bear are all concerned with the very use
of force by Israel in the Palestinian Gaza Strip itself, rather than being concerned only with how the force is being used.
4.b. Non-recognition
9. Third States must not recognize as lawful Israel’s violations of the genocide obligations, and the consequential crimes committed by individuals. Given the link between these violations and crimes and Israel’s use of force in the Palestinian Gaza Strip, rendering this use of force illegal, States are obliged not recognize that Israel has a legal right to use this force. To do otherwise would be to incorrectly treat as lawful something which is illegal and, in consequence, to implicitly endorse illegality. This non-recognition obligation is a general principle of law in the sense that it is inherent in the concept of law and the rule of law itself.
10. States must not recognize the validity of Israel’s presence in and exercise of control over the Palestinian Gaza Strip as a general matter, in and of itself. This includes not accepting, adopting or justifying, as totalizing explanations, Israel’s explanations (e.g. self-defence) for this presence/exercise of control. Such acceptance/adoption/justification is tantamount to either denying, as the ‘real’ motivation, or as one of the motivations, a genocidal intent—genocide denial. This amounts to a fundamental repudiation of the prohibition of genocide, as a general matter, and as it applies in the present situation.
11. States should not permit their nationals to travel to Israel in order to serve in the Israeli armed forces in relation to the Palestinian Gaza Strip. Where they provide advice to their nationals on travel to foreign countries that indicates whether or not such travel is advisable/permitted, this must include clear warnings that travel to Israel for the purposes
of service in the Israeli armed forces is not advisable/permitted, for the specific reason of the illegal activities such forces are engaged in and the potential individual criminal responsibility that therefore might arise as a result of this.
4.c. No aid or assistance
12. States violate their own genocide obligations if they provide aid or assistance to Israel in its violation of its genocide obligations, if this provision is given with the intent of facilitating the latter violations. The meaning and scope of this liability, which is commonly referred to as being concerned with ‘complicity’, is, as explained the outset, beyond the scope of the present opinion. There is, however, a separate, broader obligation concerning aid and assistance as a general matter, irrespective of any specific intent to facilitate illegality. A general principle of law is that a state is prohibited from providing
aid and assistance to another state if the first state is aware that the aid and assistance will be used in illegal activity. This is broader than liability commonly referred to as ‘complicity’ (although sometimes this term is also used to describe it) in that there is no requirement that the state necessarily intends the aid or assistance to be used in this way.
13. States are prohibited from providing any aid or assistance to Israel in its use of force in the Palestinian Gaza Strip, bearing in mind what has been said earlier about the illegal character of this use of force. Since the focus is on the use of force itself, not simply how it is being conducted, this means no financial, technical or material (e.g. arms) aid/assistance, as a general matter. Given the impossibility of meaningfully distinguishing between such aid/assistance that would end up supporting, one way or another, the use of force in the Palestinian Gaza Strip as distinct from other Israeli military activities, this effectively means that there can be no aid or assistance to Israel’s military at all. States who wish to support Israel’s lawful military activities—insofar as such activities are even presently being conducted —cannot do this until Israel ceases its illegal military activities.
4.d. Four duties to suppress Israel’s violations of the genocide obligations, and the
commission of individual genocide crimes
Introduction
14. A special requirement, borne by all States, flows from the genocide obligations of any given State and the related, consequential criminalization of the violation of such
obligations on an individual level: all States are required to ensure that these obligations are not violated by that State and that, therefore, the consequential individual crimes are not perpetrated, and to ensure punishment if crimes occur. This general requirement is concretized in four specific duties borne by States to suppress Israel’s violations of the genocide obligations, and the consequential commission of individual crimes, two of
which being the genocide suppression duties outlined above. These are:
(1) To prevent them from happening, and to co-operate to bring them to an end if they
do happen (partially reflected in the genocide suppression duty to ‘prevent’).
(2) Not to recognize the situation that gives rise to them (a specific duty replicating the
aforementioned more general duty arising simply out of illegality itself).
(3) Not to provide aid and assistance that will be used by Israel to facilitate them (regardless of whether or not the aiding/assisting States intend such use) (again, a specific duty replicating the aforementioned more general duty arising simply out of illegality itself).
(4) To enable the ‘punishment’ of them in terms of individual criminal responsibility
(reflected in the genocide suppression duty to ‘punish’).
Duty (1): To prevent violations of the genocide obligations and the consequent commission of individual crimes, and to cooperate to bring such violations and crimes to an end if they are perpetrated
15. The first suppression duty is that States are obliged to prevent Israel’s violations of the genocide obligations, and the consequential commission of individual crimes, and to cooperate to bring to an end such violations, and crimes, if they occur.
16. As a matter of the genocide suppression duties, all States are obliged to prevent the violation of the genocide obligations by all other States, and the consequent commission
of the individual genocide crimes.
17. On the obligation to cooperate to bring violations and consequential crimes to an end, no particular form of cooperation is prescribed by international law, given the multiplicity of possibilities that exist. Such possibilities include both institutionalized cooperation (for instance, through the United Nations) and non-institutionalized cooperation.
18. One means through which States could discharge the foregoing obligations would be to seek to give effect to the two Orders issued by the ICJ. Relatedly, States could utilize the various possibilities that exist for them to invoke Israel’s breaches of its genocide
obligations arising out of the erga omnes nature of these obligations, including intervening in the South Africa v Israel case to support South Africa. These possibilities are explained below.
19. States may also deploy a regime of sanctions aimed at curbing economic activity with Israel generally. These sanctions can also be deployed against government and military
officials involved in supporting and or promoting violations of the genocide obligations. This may extend to freezing bank accounts and assets abroad, and travel restrictions.
20. The aforementioned issue of States preventing their nationals from travelling to Israel to serve in the Israeli armed forces, addressed in connection with the obligation of non- recognition, is also relevant to the duty to prevent Israel’s violations of the genocide
obligations and the consequential commission of crimes by individuals, and to bring such violations and crimes to an end when they are perpetrated. States must, therefore, also prevent this travel, and include warnings on their travel advice, as outlined above, in order to prevent their nationals from contributing directly to these violations and themselves being liable for genocide crimes.
Duty (2): Obligation of non-recognition
21. The second suppression duty arising specifically out of the erga omnes and jus cogens nature of the genocide obligations and individual genocide crimes is that States are obliged not to recognize as lawful Israel’s violations of these obligations and the consequential commission of individual crimes. However, this specific duty merely replicates the aforementioned more general duty arising simply out of illegality itself. The content of it is therefore addressed in the foregoing coverage of the general duty.
Duty (3): Obligation not to render aid or assistance
22. The third suppression duty arising specifically out of the erga omnes and jus cogens nature
of the genocide obligations and individual genocide crimes is that States are obliged not to provide aid or assistance to Israel if this aid or assistance will be used by Israel in activities that violate these obligations, and, consequentially, constitute individual crimes, whether or not States intend the aid or assistance to be used in this away (and separate from the additional, more specific, matter, beyond the scope of this opinion, of responsibility that will arise if there is such intent). However, as with non-recognition, this specific duty merely replicates the aforementioned more general duty arising simply out
of illegality itself. The content of the specific duty is therefore addressed in the foregoing coverage of the general duty.
Duty (4): Enable the exercise of criminal jurisdiction over individuals for individual genocide
crimes
23. On the subject of genocide, the acts that are subject to State obligations also gives rise to individual criminal responsibility—what is referred to herein as individual genocide
crimes. According to Article III of the Genocide Convention, these are:
(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.
24. Individuals can be prosecuted for such crimes before both the national criminal processes
of any State (on the ‘universal jurisdiction’ basis) and the International Criminal Court.
25. As a general matter of customary international law, all States bear an obligation in international law to prosecute or to extradite individuals suspected of committing these genocide crimes in the Palestinian Gaza Strip. In a supplementary fashion, parties to the Genocide Convention are obliged to ‘punish’ these crimes, and parties to the Rome Statute
of the International Criminal Court bear obligations under that treaty to enable prosecution either nationally or before the Court.
26. Enabling criminal prosecutions to happen, one way or another, is also a key means through which States can discharge their legal obligations to suppress the violations by Israel that give rise to individual criminal responsibility. Israel’s violations of genocide obligations are actualized (predominantly) through the behaviour of human agents, and if those individuals are criminalized, the State violations they enable can be blocked. Moreover, the prospects of criminalization, including when investigations are commenced, can also have a deterrent effect on the human agents who act as Israel and thus determine its compliance with the genocide obligations.
27. In consequence, all third States must make every effort to enable investigations and prosecutions of the individual genocide crimes. Their own national jurisdictions may be hampered by immunity, which gives a special significance to the support they can and should give to the International Criminal Court. The situation in Palestine has already been referred to the ICC, but the effectiveness of that body is acutely precarious, both politically
and financially. Thus the position taken on ICC jurisdiction by third States has the potential to be transformative. States should see support for the ICC as a key means through which they discharge the suppression obligations set out above. Such support should be provided in two ways. In the first place, States who are parties to the Rome Statute could join the seven States that themselves joined the referral of the situation in Palestine originally made by the State of Palestine. This is to be contrasted with the forty-three States parties to the Rome Statute who have referred the situation in Ukraine to the Court. In the second place, third States, whether or not parties to the Rome Statute, could pledge financial support to the Office of the Prosecutor, explaining that the motivation for this is to support the Palestine investigation (even though the Office would use any funds provided across all its investigations).
4.e. Entitlement to invoke Israel’s violations of the genocide obligations
4.e.i. Basis
28. States have the legal right to invoke the responsibility of Israel for breaching the genocide
obligations. This right arises because the genocide obligations are (1) binding on those States who are parties to the Genocide Convention, a group established for the protection
of a collective interest (an erga omnes partes obligation) and, also, in any case, (2)
operative generally in customary international law, applicable to all States, and owed to the international community as a whole, i.e. obligations with erga omnes status.
4.e.ii. What States can do
4.e.ii.α. Call upon Israel—cessation, assurance of non-repetition, reparation
29. States are legally entitled to call upon Israel to perform the standard violation-
consequence-related obligations applicable in international law: cessation, assurances of non-repetition, and reparation.
4.e.ii.β. Take measures to induce cessation and reparation
30. States are also entitled to take lawful measures against Israel to induce the aforementioned cessation and reparation. However, this entitlement is otiose given that, as indicated above, States are, separately, obliged to take such measures.
31. In addition, countermeasures—acts that are ordinarily wrongful, but where wrongfulness is precluded by the fact that they are taken in response to another State’s wrongful act— against Israel on the same grounds may also be legally permissible.
4.e.ii.γ. Case(s) before the ICJ
32. The South Africa v Israel case is a third party case, brought by South Africa on the basis
of an erga omnes partes right to see Israel comply with its obligations in the Genocide
Convention under Article IX. The existence of this right was affirmed prima facie by the ICJ in the 26 January Order. Other States can potentially participate in this case. There are two potential options here.
33. In the first place, under Article 62 of the ICJ statute,
1. Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.
2. It shall be for the Court to decide upon this request.
On 23 January 2024, Nicaragua submitted a request of this kind. At the time of writing, the Court had not decided upon it. Given that the granting of such a request is not automatic, it would be prudent to wait for the Court’s decision on this application before considering whether and, if so, on what basis, an Article 62 intervention by other States might be viable and, if so, to what end such an intervention might be requested.
34. In the second place, under Article 63 of the ICJ statue, any of the other 151 States parties to the Genocide Convention have a right to intervene in the proceedings on the basis that the case involves the “construction”—i.e. a determination of the general meaning—of the Convention to which they are parties. If they intervene on this basis, then the “construction given by the judgment” will be binding on them. On 5 April 2024, Colombia made a declaration of intervention on this basis.
35. At the time of writing, it has been reported that Ireland had announced its intention to
intervene in the case; this intervention has not yet been lodged at the Court.
36. States could join Colombia in intervening on the basis of Article 63 of the Statute, to put forward their view, as a general matter, on the meaning of the Genocide Convention. They could do this individually or collectively.
37. There are two key matters on which States could intervene in a way that supports the case
made by South Africa.
38. In the first place, States could intervene to support the general jurisdictional basis for the case, in terms of the erga omnes nature of the obligations at issue and the consequential right a third state, in this case South Africa, has to bring a case.
39. In the second place, States could intervene to advance a particular legal meaning of the intent requirement in the definition of genocide, as some of them have already done in the Gambia v Myanmar case, to seek to persuade the Court to adopt a somewhat less strict approach. Indeed, those who have not intervened in that case should consider doing so there also, to make the same general point about the intent test. This would demonstrate that their position on is non-partisan. It would also potentially influence the Court at a key stage before the South Africa v Israel case gets to the issue, since the merits of Gambia v Myanmar will be addressed first, the Court potentially adopting a position then which it might go on to apply when it subsequently turns to the same issue in South Africa v Israel.
