By Sonia Boulos
Abstract: South Africa instituted proceedings against Israel before the International Court of Justice (ICJ), concerning alleged violations of key obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), committed by Israel against Palestinians in Gaza. If the ICJ eventually finds that Israel has violated key obligations under the Genocide convention, this would open new avenues for victims to seek justice, and could serve as a catalyst for the adoption of diplomatic, economic, or other measures to pressure Israel to comply with basic tenets of international law and binding UN Security Council resolutions.
On 29 December 2023, South Africa instituted proceedings against Israel before the International Court of Justice (ICJ), concerning alleged violations of key obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), committed by Israel against Palestinians in Gaza. In its submission, South Africa argued that “acts and omissions by Israel . . . are genocidal in character, because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip.” The underlying acts targeting Palestinians in Gaza that allegedly constitute genocide consist of the massive killings of civilians, causing civilians serious bodily and mental harm, and inflicting upon them conditions of life calculated to bring about physical destruction. The Application emphasizes that “the conduct of Israel — through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.” It further stated that Israel “has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide,” and that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.” Therefore, the Application contained a Request for the indication of provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention,” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”
This is a significant development, as it has the potential to seriously undermine the legitimacy of Israel’s resort to violence on an apocalyptic-scale against Palestinians in Gaza. This is especially true if the ICJ decides to indicate provisional measures requiring Israel to limit its military operations until it rules on the merits of the case. Such a scenario could increase pressure on Israel to cease or limit its military operations in Gaza, and could spare the lives of thousands of civilians. If the ICJ eventually finds that Israel has violated key obligations under the Genocide convention, this would open new avenues for victims to seek justice, and could serve as a catalyst for the adoption of diplomatic, economic, or other measures to pressure Israel to comply with basic tenets of international law and binding UN Security Council resolutions.
Previous cases at the ICJ concerning Genocide
To understand the potential of the proceedings initiated by South Africa, it is imperative to survey two cases that paved the road to it.
In 1993, the Republic of Bosnia and Herzegovina instituted proceedings against the Federal Republic of Yugoslavia (Serbia/Montenegro) regarding a dispute concerning alleged violations of the Genocide Convention. The proceedings were instituted amid the Balkan war. The Application referred to several provisions of the Genocide Convention allegedly violated by Yugoslavia, and that were committed against the people of Bosnia and Herzegovina. Immediately after filing its application, Bosnia and Herzegovina submitted a Request for the indication of provisional measures. In April 1993, the ICJ indicated provisional measures directing the Federal Republic of Yugoslavia to “take all measures within its power to prevent commission of the crime of genocide.” The power of the ICJ to indicate provisional measures is enshrined in Article 41 of the Statute of the International Court of Justice. Provisional measures are meant to preserve the respective rights of either party pending the decision on the merits. Applied to disputes concerning an alleged violation of the Genocide Convention, provisional measures are meant to halt the disputed acts that allegedly amount to genocide till the Court reaches its decision.
After 14 years of litigations, the ICJ rendered its judgment in the case and found that “Serbia [had] not committed genocide through its organs or persons whose acts engage its responsibility under customary international law,” nor had it conspired or incited to commit genocide. However, it found that “Serbia [had] violated the obligation to prevent genocide…in respect of the genocide that occurred in Srebrenica in July 1995.” It also found that Serbia violated its obligation to prevent the commission of a genocide in Srebrenica especially due to its failure to comply with the provisional measures ordered by the Court in 1993, and its failure to take all measures within its power to prevent the Srebrenica massacre.
In its judgement, the ICJ rejected the Respondents’ argument that the crime of genocide must be established in accordance with the rules of criminal law before the State itself can incur responsibility. In other words, in the absence of criminal conviction of actual perpetrators, the State cannot be held liable for the commission of the crime of genocide. In rejecting the argument, the ICJ emphasized that the obligation not to commit genocide set forth in the Genocide Convention is a distinct obligation that co-exists with the obligations of a criminal character imposed on individuals. In this sense, the ICJ distinguished between criminal responsibility that can be incurred by individual perpetrators of genocide, and civil liability for genocide that can be incurred by the State. These two distinct forms of liability are subject to different legal rules and standards. Applied to the current proceedings initiated by South Africa, The ICJ could find Israel in violation of its obligations under the Genocide Convention, even if not a single Israeli official or soldier has been actually convicted with genocide.
In 2019 The Gambia filed a case at the ICJ alleging that Myanmar failed to fulfill its obligations to prevent and punish acts of genocide committed against the Rohingya in Rakhine State as required by the Genocide Convention. The case was submitted on behalf of the 57 members of the Organization of Islamic Cooperation. As a State party to the Genocide Convention, The Gambia claimed that it had a common interest in preventing genocide by other State parties. Unlike the case of Bosnia Herzegovina, The Gambia was not directly affected by Myanmar’s wrongdoing. Still, in a promising decision, the ICJ ruled that all the States parties to the Genocide Convention have a common interest “to ensure the prevention, suppression, and punishment of genocide.” This common interest “implies that the obligations in question are owed by any State party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case.” Erga omnes obligations are considered “the concern of all States,” and “all States can be held to have a legal interest in their protection.”
The Gambia also requested the ICJ to issue provisional measures seeking to protect the rights of the Rohingya group under the Genocide Convention. When ordering such measures, the ICJ emphasized that Myanmar must take all measures within its power to prevent the commission of all criminal acts within the scope of the Genocide Convention, in particular: “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”; and “imposing measures intended to prevent births within the group”.
Both Bosnia Herzegovina and The Gambia relied successfully on Article IX of the Genocide Convention to establish the jurisdiction of the ICJ. According to Article IX, “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts ... shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” In its ruling on Preliminary Objections in the Bosnia Herzegovina case, the ICJ referred to well-established jurisprudence, stating that “a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations.” A legal dispute indeed exists between the two parties. The ICJ emphasized that both parties were “in disagreement with respect to the meaning and legal scope” of several provisions of the Genocide Convention. In The Gambia case, the ICJ further added that “any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.”
The case brought by South Africa
South Africa has followed the footsteps of The Gambia in using an erga omnes partes standing and resorted to Article IX of the Genocide Convention to establish the jurisdiction of the ICJ. It is worth noting that Israel is a party to the Genocide Convention, and it has not inserted a reservation on Article IX.
In its application, South Africa alleged that “Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide,” and that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.” South Africa also requested an expedited hearing of its Request for the indication of provisional measures to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention,” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.” This includes “calling upon Israel immediately to halt all military attacks that constitute or give rise to violations of the Genocide Convention pending the holding of such hearing.” To that end, South Africa requested the ICJ to “order Israel to cease killing and causing serious mental and bodily harm to Palestinian people in Gaza, to cease the deliberate infliction of conditions of life calculated to bring about their physical destruction as a group, to prevent and punish direct and public incitement to genocide, and to rescind related policies and practices, including regarding the restriction on aid and the issuing of evacuation directives.”
South Africa’s submission situates the violence unfolding since October 7 within a broader historical and political context. The Application states the “acts of genocide inevitably form part of a continuum.” The Application highlights the importance of placing “the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity.” The Application also alludes to “apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to self determination” as the backdrop of Israel’s alleged engagement in genocidal acts and its failure to prevent such acts, as well as its failure to prosecute the direct and public incitement to genocide, particularly after October 7.
While the Application criticizes Israel for deliberately isolating Gaza through restricting telecommunication via blackouts, targeting journalists on the ground, and restricting the access of fact-finding bodies and the international media to Gaza, it argued that available information establishes the underlying acts of the crime of genocide. This includes information on the killing of Palestinians by Israel in “large numbers”, including the killing of children; causing serious bodily and mental harm to Palestinian civilians, including children; and the infliction of conditions of life intended to bring about the destruction of Palestinians in Gaza. As for the latter, those include mass displacement and expulsions and large-scale destruction of homes and residential areas under circumstances calculated to bring about the physical destruction of Palestinians in Gaza; deprivation of access to adequate, food, water, medical care,adequate shelter, clothes, hygiene and sanitation. It also includes the destruction of the life of the Palestinian people in Gaza, including the destruction of civil systems, universities, libraries, cultural centers, religious sites and attacks on Gaza’s history; and imposing measures intended to prevent Palestinian births, These critiques highlight how Israel’s actions are impacting Palestinian women and children in Gaza severely, including how 70 percent of those killed are estimated to be women and children.
In addition to providing a detailed account of the underlying acts that allegedly establish the commission of the crime of genocide, the application focuses on the special intent requirement, which distinguishes the crime of genocide from other international crimes, such as war crimes and crimes against humanity. In genocide, the ultimate goal that the genocider is pursuing is the annihilation of a human group whether in whole or in part. Therefore, Application goes to great lengths to document expressions of genocidal intent against the Palestinian people by Israeli State Officials and others (sixteen in number), and it alludes to UN officials and bodies who interpret such expressions as conveying genocidal intent.
What could be the implications of the case?
Hachem, Hathaway, and Cole highlight that the emergence of erga omnes partes standing that allows any State to seek a legal remedy for grave violations of human rights, even when the State is not affected directly by the violation. This, in turn, could represent “a revolution in the enforcement of international law in general and human rights treaties in particular.”
As mentioned earlier, if the ICJ indicates provisional measures, this could have an immediate impact on the ongoing violence inflicted by Israel on Palestinians in Gaza. This is because these measures could heavily undermine Israel’s claim that it is exercising its right to self-defence within the limits of international law, possibly increasing public pressure on the country.
However, even if provisional measures are issued by the ICJ, one needs to be cautious about the immediate impact of the ICJ’s decision. Israel has blatantly ignored binding UN Security Council Resolutions in the past. It acted contrary to the advisory opinion of the ICJ on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which highlighted unequivocally the illegality of Israel’s construction of the wall. Although the advisory opinion is not legally binding, it still represents the interpretation of international law by the highest international court. Israel’s refusal to accept this interpretation is very indicative of its approach to international law.
In relation to contentious cases like the one filed by South Africa, Article 94 of the UN Charter requires all member states to abide by ICJ decisions in cases to which they are a party, and in the event of noncompliance, the UN Security Council may “decide upon measures to be taken to give effect to the judgment.” But given the US-Israel alliance, it is hard to imagine how the UN Security Council will play a role in enforcing a future decision given the veto powers of the US.
It is worth noting that in The Gambia case, the ICJ relied heavily on the findings of the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar to justify issuing provisional measures. According to the 2018 findings of the Fact-Finding mission, the crimes committed in Rakhine State, and the manner in which they were perpetrated, were similar in nature, gravity, and scope to those that have allowed genocidal intent to be established in other contexts. In its 2019 report, the Fact-Finding mission also concluded that “on reasonable grounds…the Rohingya people remain at serious risk of genocide under the terms of the Genocide Convention.”
In the case of Gaza, as highlighted by South Africa, Israel is obstructing the access of international fact-finding bodies in the region. Therefore, there is an attempt on the part of South Africa to draw a mosaic from pieces of information that could establish the claim that the international community is witnessing a Genocide in the making. The Application refers to the myriad statements of UN chiefs, agencies, and other international actors, such as the International Committee of the Red Cross. Among those references, the Application relies on a statement issued on 2 November 2023 by eight Special Rapporteurs, warning that they “remain convinced that the Palestinian people are at grave risk of genocide.” It also refers to the warning issued on 16 November 2023, where 15 United Nations Special Rapporteurs and 21 members of United Nations Working Groups cautioned that “[g]rave violations committed by Israel against Palestinians in the aftermath of 7 October, particularly in Gaza, point to a genocide in the making.” The statement highlights “evidence of increasing genocidal incitement, overt intent to ‘destroy the Palestinian people under occupation.’” Those experts expressed “profound … concern … about … the failure of the international system to mobilise to prevent genocide,” cautioning that “[t]he failure to urgently implement a ceasefire risks this situation spiralling towards a genocide conducted with 21st century means and methods of warfare.” They called on “[t]he international community, including not only States but also non-State actors” to “do everything it can to immediately end the risk of genocide against the Palestinian people.”
A favorable decision on the merits of the case by the highest international court can be pivotal in marshalling other mechanisms for law enforcement, such as the imposition of economic or diplomatic sanctions, and the adoption of counter measures by regional organizations (such as the EU, the African Union, etc.) or at the State level. A favorable decision can also mobilize public opinion and provide further legitimacy to public campaigns to pressure Israel to comply with international law, such as the BDS movement, and can lead to an increased pressure on governments to take action.
As mentioned earlier, the proceedings at the ICJ are of a civil nature focusing on the responsibility of States and not on the criminal liability of individuals. As for remedies, there is an array of remedies under general international law that could be adopted by the ICJ depending on the nature of the dispute. Those include caseation of an internationally wrongful act if it is continuing; requiring appropriate assurances and guarantees of “non-repetition” of the internationally wrongful act; and “making full reparation for the injury caused by the internationally wrongful act.” A full reparation for the injury caused can consist of restitution, compensation, and satisfaction, either alone or in combination.
A favorable decision could also encourage victims to pursue civil remedies abroad in foreign jurisdictions that recognize civil universal jurisdiction. Under international law, “courts can exercise of adjudicative universal jurisdiction over civil tort claims, including those based on genocide…without requiring a link between the tort or underlying crime and the forum state.”
Although a favorable decision does not necessarily entail the existence of individual criminal liability, a ruling by the ICJ, including the adoption of provisional measures, can put pressure on the International Criminal Court (ICC) to proceed more promptly with its investigation into allegation of Genocide or other grave violations of international law. These can focus on the individual criminal responsibility of Israeli officials, soldiers, or other individuals. It can also create a favorable environment that would encourage victims to pursue criminal justice by using universal jurisdiction laws to open criminal procedures abroad against alleged perpetrators.
A favorable decision would also represent a vindication and a moral victory for Palestinian victims and constitutes an international acknowledgement of the grave harm that has been inflicted on them, a victory that should not be underestimated. As stated by UN Human Rights Commission’s resolution on impunity, “for the victims of human rights violations, public knowledge of their suffering and the truth about the perpetrators, including their accomplices, of these violations are essential steps towards rehabilitation and reconciliation.”
Sonia Boulos, Associate Professor of International Human Rights Law, Nebrija University, Spain