Legal Consequences of Peremptory Norms: A Missing Part in the South Africa v. Israel Case and an Opportunity to Reinforce Jus Cogens

[Luciano Pezzano is Professor of Human Rights in the University of Business and Social Sciences (UCES, Argentina) and Lecturer of Public International Law in the National University of Cordoba (UNC, Argentina)]

The political and legal implications of the decision by South Africa to bring Israel before the ICJ under the Genocide Convention are countless, even pending the Court’s decision on the provisional measures asked by South Africa. 

The Application itself, besides the human tragedy that underlies it, offers a great number of issues for the legal analysis: obligations under the Genocide Convention, jurisdiction of the ICJ, obligations erga omnes and jus standi, genocidal intent, burden of proof… but there is also an important issue missing in South Africa’s Application: the legal consequences of genocide as a serious breach of an obligation arising under a peremptory norm of general international law. 

Although South Africa reminds the jus cogens nature of the prohibition of genocide (Application, para. 5 and 13), it does not elaborate further on the legal consequences of that nature.

In this contribution, I will argue that in this case –and in others concerning jus cogens–, the Applicant must ask the ICJ to pronounce on the legal consequences of the serious breaches of the obligations arising under a peremptory norm, according to the rules of general international law.

Serious Breaches of jus cogens and its Consequences

The existence of a regime of aggravated responsibility in international law remains as one controversial topic in the academic debate and in the political discourse (pp. 218-223). Although there are not such a regime per se, the provisions of Articles 40 and 41 ARSIWA –since its adoption by the ILC at the turn of the century–, have been supported by international practice and jurisprudence, as the ILC itself confirmed in its Draft Conclusions on jus cogens, adopted in 2022 (Draft Conclusion 19).

However, the ICJ has not addressed the particular consequences of serious breaches of peremptory norms under international general law. It referred to the consequences of breaches of obligations erga omnes in its advisory opinions on the Wall and Chagos Archipelago, and although those findings are easily applicable to jus cogens –as the ILC did in its Commentary to the 2022 Draft Conclusion 19 (para. 6)–, there is no definitive pronouncement on the issue by the Court.

This could have an immediate explanation, since in the contentious cases concerning jus cogens, the Applicants chose not to ask the Court a pronouncement on the legal consequences of the serious breaches. It was the case of Bosnia and Herzegovina, Croatia, and The Gambia, in their respective proceedings regarding genocide. Even the Democratic Republic of Congo, in the reparations phase in the Armed activities case –in which the ICJ found that Uganda had committed a grave violation of the prohibition of the use of force– did not claim an aggravated responsibility of Uganda nor particular consequences of its aggression.  

This is astounding, since genocide is –with aggression– the paradigmatic example of a serious breach of an obligation arising under a peremptory norm, and the determination of its particular consequences is an important matter of international law. 

Perhaps many lawyers feel tempted to follow a trend in international law that seeks to diminish the importance of jus cogens, no matter how contradictory that trend could be, in the sense that diminishing the importance of jus cogens attacks the very foundations of contemporary international law, and, I think, deny it as a legal regime.

Against this background, and supported by the renewed interest in jus cogens spearheaded by the ILC treatment on the topic, I think that the pending cases before the ICJ offer a unique opportunity for the Applicants –and, perhaps, for intervening states– to ask the Court a pronouncement on the particular legal consequences of the serious breach of an obligation arising under a peremptory norm.

Adding jus cogens to the Legal Argumentation Before the ICJ

Fortunately, there is a case, also pending before the ICJ, which provides a perfect example of what I think is needed in South Africa’s (and also The Gambia’s) legal argumentation. It is the case concerning Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic), submitted before the ICJ on 8 June 2023. 

In a very short paragraph in their Joint Application, Canada and the Netherlands have requested the Court 

“to adjudge and declare that Syria has committed a serious breach of a peremptory norm of international law, due to its gross or systematic failure to fulfill its obligation under Article 2 of the Convention against Torture not to commit torture as well as to prevent its officials and other persons acting in an official capacity from perpetrating acts of torture, and determine the legal consequences thereof”.

(para. 61).

The importance of this claim cannot be overstated: for the very first time, Applicants before the ICJ has requested it to determine the legal consequences of the commission of a serious breach of a peremptory norm of international law –in this case, the prohibition of torture– by a State. This was underlined by Prof. Hill-Cawthorne in an interesting post on the case, where he stressed that it would be a very welcome opportunity for the Court to clarify its views on this issue.

I hold that there are sufficient elements that allow following that same path in the genocide cases pending before the ICJ. In particular, South Africa should request the Court to adjudge and declare that Israel has committed a serious breach of a peremptory norm of international law, due to its failure to fulfill its obligations under Article I one of the Genocide Convention, and determine the legal consequences thereof.

From a substantial point of view, there is no doubt on the jus cogens nature on the prohibition of genocide. The ICJ itself recognized it for the first time in 2006, in its Judgment in the DRC v. Rwanda case (para. 64), and reiterated it, more importantly, in the 2007 Judgment on the merits in the Bosnia and Herzegovina v. Serbia case (para. 161).

Furthermore, genocide satisfies by itself the seriousness criteria of Article 40(2) ARSIWA. In its Commentary, the ILC pointed out: “some of the peremptory norms in question, most notably the prohibitions of aggression and genocide, by their very nature require an intentional violation on a large scale” (ARSIWA, Commentary on Article 40, para. 8).

Therefore, since genocide is a serious breach of an obligation arising under a peremptory norm of international law, the legal consequences entailed by it are those enshrined in Article 41 ARSIWA, namely: the duty of cooperation, the duties of non-recognition and not render aid or assistance, and the “other further consequences that a [serious breach] may entail under international law” (Article 41(3)). 

Whether those other consequences comprise an aggravated responsibility remains a contentious matter in international law. 20 years ago, late Judge Cançado Trindade has brilliantly justified the necessity of such a regime in his separate opinion in the Masacre de Plan de Sánchez case before the Inter-American Court of Human Rights:

“the current search for a normative and conceptual hierarchy in the international legal order (illustrated by the establishment of jus cogens) has established aggravated international responsibility in cases of particularly grave human rights violations and international crime with all its legal consequences.”

(para. 33)

In any case, a determination by the ICJ would contribute to shed light on this important issue and it is, therefore, necessary.

From a procedural point of view, there is no obstacle for South Africa to advance this request. In the first place, South Africa has reserved the right to revise, supplement or amend its Application (Application, para. 111), and could do it. In the second place, the ICJ’s jurisprudence is constant in that a new claim can be introduced after the Application, provided it does not transform the subject of the dispute brought before the Court (see Ahmadou Sadio Diallo case, Judgment on the merits, para. 39). In order to determine its admissibility, either the additional claim must be implicit in the Application or it must arise directly out of the question which is the subject-matter of the Application (idem, para. 41).

The proposed request does not change the subject matter of the case and, in my view, satisfy both criteria. Regarding the first one, in the Application, South Africa asks the ICJ to judge and declare that Israel has breached its obligations under the Genocide Convention (Application, para. 111(2)(a)), i.e. that it has committed wrongful acts that entail international responsibility (ARSIWA, Article 1). This view is confirmed by the remedies sought by South Africa in the Application, namely cessation (para. 111(2)(b)), reparation (para. 111(2)(e)) and guarantees of non-repetition (para. 111(2)(f)), all of them consequences of the international responsibility. One can argue that South Africa is asking the Court to declare the international responsibility of Israel for breaching its obligations under the Genocide Convention. Since those obligations arise under a peremptory norm, the legal consequences of their serious breaches form integral part of the international responsibility of the State concerned, and, therefore, they are implicit in South Africa’s Application.

Regarding the second one, the determination of the particular legal consequences of a serious breach of a jus cogens norm arise directly out of the subject-matter of the Application: the alleged breaches by Israel of its obligations under the Genocide Convention. Indeed, as a matter of international responsibility, it falls squarely under provisions of Article IX of the Genocide Convention, which confers jurisdiction to the ICJ on disputes relating to the interpretation, application or fulfilment of the Convention, “including those relating to the responsibility of a State for genocide” (see 2007 Judgment, para. 169). 

Since the case is in its early stages, South Africa could easily introduce this request in its memorial (or even amending its Application). The case for The Gambia could be more difficult, since the proceedings are in an advanced stage, but I think that the above reasoning also applies to the case, and The Gambia could introduce the request in its oral arguments on the merits.

Final Remarks

South Africa can and must request the ICJ to adjudge and declare that Israel has committed a serious breach of a peremptory norm of international law, due to its failure to fulfill its obligations under Article I of the Genocide Convention, and determine the legal consequences thereof. Substantial and procedural analysis justify this course of action: jus cogens must be added to the legal argumentation in the genocide cases.

Genocide is the “crime of crimes” not only because is the most egregious violation of human rights and human dignity. It is a crime –an international crime in the wider sense, comprising both individual and state responsibility– because it is a serious –arguably, the most serious, with aggression– breach of a jus cogens norm. 

The very purpose of the existence of peremptory norms is the protection of fundamental values for the international community (2022 Draft Conclusion 2). They are higher norms that requires, for its own nature a special regime of consequences for their violation, not only through international cooperation, but also through an aggravated responsibility for the responsible State. Without that regime –and its enforcement–, the hierarchical superiority of jus cogens could become illusory. The human tragedies of our era demand the consolidation of that regime. Asking the ICJ to pronounce on the issue not only could offer legal certainty to this issue at the highest judicial level, but also –and perhaps more importantly– it will prove that there are states committed to the protection of our shared values as an international community, raising jus cogens to its right place at the center of the legal order.