13 Dec The Prohibition against Genocide: Hollow Rhetoric or Pathway to Accountability?
[Fatima Mehmood is a lecturer of Public International Law at Universal College Lahore, Pakistan]
Is the contemporary prohibition against genocide mere rhetoric considering what we see today in the Gaza strip and beyond or is there some tangible weight to this prohibition which can be translated into effective action for accountability against Israel? How is the prohibition against genocide actionable or could be made actionable against Israel? These are pressing questions for the international law community. Repeating the nature of a prohibition and transposing immorality into the language of international law goes only so far- at some point, translating language to action requires a tangible vehicle.
The compromissory clause of the Genocide Convention has become the jurisdictional basis of two important, ongoing cases before the ICJ – one, filed by Ukraine against Russia and two, filed by Gambia against Myanmar. While the former is based on a hitherto unadjudicated allegation claiming that a false accusation of genocide is a violation of the Genocide Convention, the latter hinges on a pioneering locus standi based on the erga omnes partes character of the prohibition against genocide.
Against the backdrop of current characterisations of Israel’s actions against the Palestinians as possessing both the actus reus and mens rea of genocide, it is worth examining what the prospects are for a case based on the Genocide Convention before the ICJ. The largely favourable outcome of Gambia’s request for provisional orders against Myanmar may provide a grounding for a similar request before the ICJ against Israel. Here, it is important to also note that there is a pending Advisory Opinion on Israel’s practices and policies in occupied Palestine before the ICJ. Notwithstanding the outcome of this pending Opinion, does a request for provisional measures aimed at mitigating the irreparable harm inherent in the very allegation of a genocide offer a more substantive interlocutory solution for the affected Palestinians?
The singularly unique facet of Gambia’s standing before the ICJ, successfully proved, was based on the assertion that the prohibition against genocide as enshrined in the Genocide Convention was an erga omnes partes obligation, hence giving locus standi to all states party to the Convention to bring a claim under it before the ICJ. Can the same grounds be used by a state party to the Convention to bring a case before the ICJ against Israel? If so, what are the chances of success? This post begins with an overview of the unique facets of Gambia vs Myanmar, with a view towards exploring whether that case paves the path for a similar case against Israel. Then, this post moves on to an analysis of how such a case may be brought against Israel before the ICJ and the purpose(s) it can serve. Finally, this post concludes by highlighting the potential roadblocks to the institution and enforcement of such a case.
Gambia vs Myanmar: Useful Firsts before the ICJ?
On 11 November 2019, The Republic of the Gambia, a small West African country, instituted proceedings against Myanmar under the Genocide Convention 1948. Gambia alleged, inter alia, that the Government of Myanmar had “adopted, taken and condoned” acts against members of its Rohingya population, a distinct religious and ethnic group living primarily in the Rakhine State, which borders Bangladesh. These acts, it is alleged, violate provisions of the Genocide Convention which impose obligations on Myanmar, a state party to the Convention.
These provisions include obligations not to commit genocide or conspire to commit it, prohibitions against direct and public incitement to commit genocide, attempting to commit genocide and complicity in committing genocide. Gambia further alleged that Myanmar’s actions and omissions in its treatment of the Rohingya population violate its duties to prevent and punish genocide, in addition to the enactment of legislation to do the same. Aiming to mitigate and prevent causing irreparable harm and injury to the Rohingya, Gambia requested the ICJ to indicate provisional measures in the case which oblige Myanmar, inter alia, to prevent genocide, preserve relevant evidence and report to the ICJ on its progress.
Oral proceedings on the issue of the indication of provisional measures were subsequently held at the ICJ between 10 December 2019 and 12 December 2019. On 23 January 2020, the ICJ passed a unanimous order largely in favour of Gambia, indicating most of the provisional measures requested against Myanmar.
The institution of these proceedings is potentially capable of producing a twofold historic consequence- one, declaring a state to be genocidal and two, that declaration being made on the application of a directly unaffected state. For the first time in the ICJ’s jurisprudence, this case explores the truly erga omnes nature of the prohibition against genocide, which is worth analyzing. It is also worth analysing the potential human rights impact of a current judicial pronouncement on the alleged crime, as opposed to solely ex-post facto accountability.
An obligation erga omnes is one which is owed to the international community as a whole, as opposed to a specific state or group of states who are, prima facie, directly affected by breach of that obligation (Barcelona Traction, paras 33 and 34). It is widely recognised that the prohibition of genocide is an erga omnes obligation. However, the prohibition against genocide has, until the case in question, not been invoked by any state party to the Genocide Convention based on it being erga omnes.
In Bosnia v. Serbia, the character of the prohibition against genocide being an erga omnes obligation was not directly addressed by the ICJ. However, it was recognised as a potentially relevant issue which could be discussed in relation to the legal standing of the applicant (para 185). In this case, the ICJ felt no need to discuss the applicant’s standing from an erga omnes perspective in relation to the part of the Application which concerned alleged genocide by the Respondent outside the territory of Bosnia and Herzegovina and against non-nationals. This was because the ICJ concluded that no separate evidence or facts were presented in support of such a claim, nor was it argued for in the oral proceedings before the Court (para 368).
In Croatia v. Serbia, the ICJ rejected both Croatia’s claim and Serbia’s counterclaim under the Genocide Convention. Again, the status of the prohibition against genocide as an erga omnes obligation was a non-issue in this case as both parties established standing before the ICJ based on claims of genocide within their respective territories and against their respective nationals.
There was some discussion of erga omnes obligations in the Genocide Convention in Congo v. Rwanda. In this case, the ICJ reiterated that while the Genocide Convention creates erga omnes obligations, that is not the equivalent of conferring jurisdiction on the ICJ (para 64). Once again, however, the Applicant in this case was not basing its legal standing before the court primarily based on erga omnes obligations owed to it. It was claiming breaches of international law principles and human rights norms that had physically occurred on its territory allegedly at the hands of the Respondent.
Therefore, a perusal of the ICJ’s jurisprudence vis-à-vis the Genocide Convention makes it clear that the prohibition of genocide has never been invoked by a state in whose territory the alleged genocidal acts did not take place or whose nationals were not directly or indirectly the victims of such acts. The Gambia’s institution of the proceedings against Myanmar were, therefore, the first of their kind before the ICJ. Gambia has not alleged in any manner whatsoever that the alleged violations of the Genocide Convention by Myanmar took place on its territory or victimized its people. It has based its application and locus standi claim solely on the erga omnes character of the prohibition against genocide – because this obligation is owed by Myanmar to each country in the world, every country by necessary corollary has the right to hold it accountable in case of violation of the obligation undertaken. While it is remarkable that The Gambia applied to establish such a legal standing before the ICJ, it is even more remarkable that the basis for their standing was accepted by the ICJ as sufficient to establish prima facie jurisdiction for the indication of provisional measures. Myanmar argued that The Gambia was not specially affected by its allegations of genocide against the Rohingya and therefore, had no standing to bring the case before the ICJ. Myanmar went on as far as to argue that The Gambia was acting as a proxy for the Organisation of Islamic States (OIC) which, as an organisation, could not bring a claim before ICJ’s inter-state dispute resolution procedure. The ICJ specifically rejected this contention in its Order on Provisional Measures and asserted that a dispute between Gambia and Myanmar is not precluded on the basis that Gambia obtained support of other states and international organisations to bring its claim before the court. Therefore, while the status of the obligation as erga omnes had been recognised generally by courts, tribunals, and jurists before this case, it had never manifested itself in the form of a ground for legal standing which was accepted as such by the ICJ.
Ukraine v Russia: Using the Genocide Convention to Establish Falsity of Genocidal Allegations?
Ukraine instituted proceedings against Russia before the ICJ on 22 February 2022. Ukraine, like Gambia, relied on the compromissory clause of the Genocide Convention to bring this claim. However, unlike Gambia, the legal standing is not erga-omnes based because Ukraine is the directly affected state on the facts. The uniqueness of this claim lies in the fact that Ukraine is claiming that Russia has falsely alleged genocide on part of Ukraine and used this false allegation to engage in a “military invasion of Ukraine”. The difference in contexts between the cases of Gambia and Ukraine has been examined previously. However, the present post is aimed at examining the Ukraine case to decipher similarities to a potential case against Israel. It is worth noting that between 21 July 2022 and 5 June 2023, a total of 33 states have filed their declaration of intervention in the proceedings against Russia under Article 63(2) of the ICJ Statute and Article 82 of the Rules of Court. The ICJ concluded that the declarations of intervention met all the requirements of Article 82, and dismissed all but one of Russia’s objections to the declarations, rendering only USA’s declaration inadmissible. Most of the 33 intervening states are Western and/or European.
Like Gambia, Ukraine also instituted a request for provisional measures against Russia. The ICJ accepted the request and called on Russia to immediately suspend its military operations in Ukraine by a majority vote, and unanimously indicated to both sides not to aggravate or extend the dispute. Thus, we do see the ICJ’s propensity in favour of granting provisional measures especially where genocide is alleged. The question, however, is: will the 33 intervening states alongside Ukraine offer similar or comparable levels of support to a country instituting a case against Israel? Can the ease and strength of intervention against Russia be expected against Israel as well?
An Erga Omnes Locus Standi for a Claim of Genocide against Israel?
Israel is a party to the Genocide Convention and has not inserted a reservation on the dispute resolution clause contained in Article IX of the Convention. Neither Russia nor Myanmar reserved against this provision either. Therefore, as a starting point, there can be no objection based on a treaty-based reservation to the institution of proceedings before the ICJ. Technically, any of the 153 states parties to the Convention can institute proceedings against Israel under the aforesaid compromissory clause. Based on the unambiguous erga omnes nature of the prohibition, now clearly recognised by the ICJ, standing can be established. Crudely put, any state from any corner of the world can bring a case against Israel before the ICJ. The real question, however, is not whether it can, but rather, whether it will?
The aftermath of the Palestinian Wall Advisory Opinion, which despite unambiguously highlighting the illegality of Israel’s construction of the wall, was unapologetic non-compliance on Israel’s part by its actions in proceeding to construct it despite the Opinion. While Advisory Opinions are not technically binding, neither is a blatant flouting of them acceptable by any lengths in international law. Israel’s past disregard of the ICJ’s determinations of legality might render a future determination based on the Convention’s compromissory clause susceptible to similar convenient ignorance.
The uniquely undeterred US-Israel alliance further accentuates the foreseeable prospects of non-enforcement of and non-compliance with an ICJ decision, if there were to be any. The failure of successive UN Security Council resolutions on the current escalation in Israel’s crimes against the Palestinians is a testament to that assertion: US’ veto power in the Security Council effectively implies an Israeli veto against any resolution meant to interfere in its actions or hold it accountable for the same. In addition, the US voted against the now-passed General Assembly resolution, which further indicates the likelihood of the Security Council remaining stagnant in the face of yet another ongoing conflict requiring immediate intervention of the international community through the UNSC’s powers of maintaining international peace and security.
The latitude given to Israel by the USA, while argued by Mearsheimer and Walt to be based on factors more complex and multi-layered than mere moral and/or strategic alliances, remains the institutional obstacle to optimizing the Security Council’s mandate. International relations scholars have argued strategic and dwindling moral interests do not account for this support, unique both because of its nature and length. The dynamic nature of international law, factoring in the range and breadth of actors which influence international law-making, including the media, think tanks, academia, entails that this alliance remains ingrained into the US political system.
There is also the obviously determinative question of which state currently has the political will and resources to bring such a case before the ICJ. In the case of Ukraine, US and European support offered Ukraine impetus to institute proceedings against Russia – this support is evidenced by the sheer number of intervening states on Ukraine’s behalf under Article 62 of the ICJ Statute. In the case of Gambia, the OIC provided institutional support for Gambia’s case. In the case of Israel, it is not entirely clear which country possesses the unrelenting will, support, and interest to institute this case against Israel. Regional countries are important players, but none has taken Israel to the ICJ so far, thus their political will in that regard remains to be seen.
Ideally, if all these roadblocks are somehow overcome, and a country does bring a Genocide Convention based claim against Israel asking from impactful provisional measures before the ICJ, and assuming a decision is also rendered in favour, it may need to be combined with the distinctly special institutional prowess of other international law institutions. Concurrent accountability in multiple institutions is likely to yield a better “something” which is better than the prevalent “nothing”. The International Criminal Court is already undertaking investigations into the matter, but it remains to be seen how long this will take, and there will be specific challenges facing this investigation. It is worth noting that there is a significant difference in the urgency with which the ICC responded to allegations of war crimes in Ukraine compared with a relatively cautious approach towards the present escalation in the Gaza Strip, a point recently underscored by the new UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
While the inevitable interdependence of law and power does influence the trajectory of accountability against Israel, the existence of the discussed international mechanism for legal determinations needs to be underscored. Identification of tangible problems is imperative, but that identification should be a prelude to discussion of tangible solutions. The object and purpose of the Genocide Convention in preventing and prohibiting genocide should not be taken lightly (the importance of a common interest enshrined in the same having recently been discussed on Opinio Juris). In the same vein, the importance of this prohibition being a jus cogens norm inviting erga omnes responsibilities, has the potential to be translated into concrete action. These are not mere labels, rather powerful tools via which moves towards accountability can be made. Identification of foreseeable obstacles, too, is not meant to act as conclusive, rather to steer actionability in the right direction.