An Appeal to Address the Failure in Preventing Genocide in Gaza through the International Court of Justice

[Mohammad H. Zakerhossein is an Assistant Professor at the University of Tehran, Iran]

In recent times, the Gaza Strip has become the center of a devastating humanitarian crisis that only worsens by the hour, leaviång the world dismayed. The Palestinian people in Gaza have suffered immensely, with widespread destruction, loss of life, and unimaginable suffering. The conflict has reduced homes, schools, and vital infrastructure to rubble, displacing thousands and leaving them vulnerable. Starvation has been wielded as a weapon of war, aimed at breaking the resistance in Gaza. Innocent civilians have borne the brunt of this violence, with consequences that are undeniably inhumane. 

The ongoing violence in Gaza, coupled with the collective punishment imposed on its civilian population, has raised concerns about the possibility of genocide against the Palestinians. As the international community grapples with the complexities of the Israeli-Palestinian conflict and the issue of accountability, it becomes crucial to shed light on the legal and moral obligations of states to prevent such atrocities. This article aims to explore the pressing issue of genocide prevention in Gaza, emphasizing the responsibility of states party to the Convention on the Prevention and Punishment of the Crime of Genocide to take all necessary measures to prevent genocide. It also discusses the possibility of filing a complaint against states party allied with Israel before the International Court of Justice (ICJ) for their failure to prevent genocide. 

Risk of Genocide in Gaza

The risk of genocide in Gaza has been a cause for concern among numerous international actors, including the United Nations, NGOs, experts, and scholars. Scholars have issued warnings about the potential for genocide in Gaza, and the UN Special Rapporteur on the Occupied Palestinian Territories, Francesca Albanese, has labeled the current situation as the largest instance of ethnic cleansing in the history of this troubled land. Furthermore, a group of UN experts and special rapporteurs have warned that Gaza is running out of time and have demanded a ceasefire to prevent genocide. These authorities have underscored the urgent need for attention and action to prevent further escalation of violence and protect innocent lives. Their assessments highlight the alarming situation on the ground, emphasizing the need for immediate intervention and prevention. The possibility of mass atrocities and genocide cannot be ignored, and the promise of “Never Again” must be upheld. 

Duty to Prevent Genocide

The obligation to prevent genocide, as the most serious crime under international law, is a fundamental principle enshrined in the Genocide Convention, which was adopted by the United Nations General Assembly in 1948. The Convention defines genocide as acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. It places a legal duty on states to prevent and punish acts of genocide and to protect individuals and groups from such atrocities. 

In the landmark case of Bosnia v. Serbia before the ICJ in 2007, the Court examined the obligations of states under the Genocide Convention. The case arose from the genocide that occurred during the Bosnian War in the 1990s, where thousands of Bosnian Muslims were systematically targeted and killed. The ICJ ruled that Serbia had violated its obligation to prevent genocide by failing to take necessary measures to prevent the genocide from occurring and by not punishing those responsible. The Court’s decision reaffirmed the importance of the obligation to prevent genocide and emphasized the significance of timely and effective action in preventing genocide and holding perpetrators accountable. According to Schiffbauer, the obligation to prevent genocide, given its impact on the international community’s very existence, is among the highest and unconditional obligations under international law. This legal and treaty-based duty applies to all states party in the current conflict in Gaza. 

Obligation of Conduct

As developed by the jurisprudence of the ICJ, the duty to prevent genocide “is one of conduct and not one of result” obligations. It means that States Parties are obliged to “employ all means reasonable available to them, so as to prevent genocide so far as possible” (para 430). Therefore, it is imperative for a state to adopt a course of conduct in fulfilling its obligations. As aptly explained by International Law Tribunal for the Law of The Sea, states are compelled to “deploy adequate means, to exercise best possible efforts, to obtain” the desirable results, here, the prevention of genocide. In this context, a subjective parameter and criterion comes into play, where the capacity of the State concerned to influence the genocidaires assumes a pivotal role in determining whether it has duly discharged its obligation. This capacity and feasibility is contingent upon various factors, inter alia, on “the strength of the political links, as well as links of all other kinds, between the authorities of that states and the main actors in the event” (para. 340). Here, an essential aspect to consider is the significant role of economic interdependence, which can be utilized as a compelling and influential tool. For instance, in the present situation, Germany could indisputably be perceived as a State obliged to prevent potential acts of genocide by Israel.  Germany, being the Israel’s most important economic partner in the EU, engaging in bilateral trade worth 8.94 billion US dollars (2022), possesses the leverage necessary to dissuade Israel to commit any form of genocide.

Commencement of Duty

In its judgment, the ICJ takes a result-oriented approach, rejecting the notion that “the obligation to prevent genocide only comes into being when perpetration of genocide commences”, because “that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act|” (para. 431). In this regard, ICJ recognizes a risk-based due diligence obligation by assuming a State’s “duty to act” if “a serious risk that genocide will be committed” exists (para. 431). As the Court clarifies, contrary to the commission of genocide which requires an act, “a violation of the obligation to prevent genocide results from mere failure to adopt and implement suitable measures” for this purpose (para. 432). Therefore, as Longobardo argues, the actual occurrence of genocide is not a legal factor that must be proved to trigger the duty to prevent genocide. It means that a State’s inaction may amount to an internationally wrongful act triggering international responsibility of the State concerned that has decided to remain silent and inactive. It is because the duty to prevent places states under positive obligations, namely “to do their best to ensure that such acts do not occur” (para. 432).  

An Extraterritorial Duty

It should be noted that the duty to take measures to prevent genocide, as an erga omnes obligation, is an extraterritorial task that exists regardless of territory or a specific link to the state in question. Therefore, all states party to the Genocide Convention, which also have influence on Israel through political and economic connections, have a well-established duty to prevent the commission of genocide in Gaza. One may argue that the current situation in Gaza does not definitively constitute the crime of genocide. However, according to the ICJ, a state can incur responsibility if it was aware or should have been aware of the serious danger that acts of genocide could be committed. In this context, one can refer to the same rules governing the command responsibility as a mode of individual liability. According to ICTY in the Ndindiliyimana case, the test for whether a superior had reason to know of a crime is “whether he possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out”. In light of the widespread concern expressed by the international community and media, it is evident that the alarm regarding the tragic situation in Gaza has been sufficiently resounding. The accumulation of numerous warnings from esteemed experts and organizations has undeniably met the threshold of a knowledge-based standard. Consequently, it is reasonable for States to acknowledge the potential risk of a future occurrence of genocide.

Common Interest to Bring a Case

As established in the Gambia v. Myanmar case, all contracting states have a common interest in accomplishing the high purposes of the Genocide Convention. This means that any State Party to the Convention is legally able to bring a case before the ICJ, under Article IX of the Convention, against one or more states whose influence could have prevented the commission of genocide in Gaza but failed to do so. Such a judicial initiative can be seen as an indirect way to fulfill the obligation to prevent genocide. Given that Western leaders have shown unified support for Israel in its war against Gaza, rather to condemn the Israel criminal policy, a complaint before the ICJ could be seen as a dispute under the Genocide Convention between the complainant and the supporter(s). 

The case law before the ICJ serves as a reminder of the international community’s commitment to preventing genocide and the legal obligations placed on states. It underscores the need for states to remain vigilant, proactive, and cooperative in preventing acts of genocide, as well as in responding swiftly and decisively when such atrocities occur. By fulfilling their obligations under the Genocide Convention, states can contribute to the prevention of genocide and the promotion of peace, justice, and human rights globally. On the other hand, inaction may contribute to the commission of genocide and could be interpreted as giving a green light to genocide in Gaza. Filing a complaint before the ICJ against states allied with Israel for their failure to prevent genocide can be a crucial step towards accountability and justice. It is now necessary for any party to the Convention, especially Islamic States, to proactively engage in lawfare and legal action against Pro-Israel states to hold them accountable for their inaction and indifference.