The “Capacity to Influence”, State Responsibility, and the Obligation to Prevent Genocide

[Jinan Bastaki is Associate Professor of Legal Studies at New York University, Abu Dhabi.]

I previously wrote about third-state responsibility for the prevention of genocide in the South Africa v Israel case, where the International Court of Justice (ICJ) affirmed the erga omnes nature of the obligation to prevent, suppress and punish genocide (para. 33). But what does the duty to prevent entail, and who has that duty? As scholar William Schabas notes regarding the travaux preparatoires of the Genocide Convention, “nothing in the debates about article I provides the slightest clue as to the scope of the obligation to prevent” (W. Schabas, 2009, 81). An explanation of the scope, however, was given in the 2007 Bosnia and Herzegovina v. Serbia and Montenegro (“Bosnia v Serbia”) judgment. The Court specified that states have the responsibility “to employ all means reasonably available to them, so as to prevent genocide so far as possible,” (Bosnia v Serbia, para. 430), particularly those states with “the capacity to influence effectively the action of persons likely to commit, or already committing, genocide,” (para. 431). In finding responsibility for failing to prevent genocide, the Court saw that Serbia was in a position to influence the perpetrators of the Srebrenica genocide “owing to the strength of the political, military and financial links,” (para. 434). Regarding complicity, the Court stated that it “includes the provision of means to enable or facilitate the commission of the crime,” (para. 419). In light of Nicaragua’s case against Germany for “continuing to aid and assist Israel” (Nicaragua v Germany, Application Instituting Proceedings, 1 March 2024, para. 5), this article aims to assess the notion of “the capacity to influence” (Bosnia v Serbia, para. 431) in determining responsibility of states in failing to prevent genocide.

‘Due Diligence’ and Levels of Influence

In Bosnia v Serbia, the Court mentioned the principle of due diligence (Bosnia v Serbia, para. 430) in ascertaining a State’s responsibility for failure to prevent. One of the matters to be assessed is the “capacity to influence.” The Court explained that,

This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide.

para. 430, emphasis added

The Court also added that once a State learns that a serious risk of genocide exists, and “if the State has available to it means likely to have a deterrent effect… it is under a duty to make such use of these means as the circumstances permit,” (para. 431). The court further explained that the “obligation to prevent the commission of the crime of genocide is imposed by the Genocide Convention on any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide.,” (para. 461, emphasis added). The wording seems to imply that the capacity to influence can be construed broadly.

Providing weapons – or failing to stop the transfer of weapons once a serious risk has been identified –  may more clearly be regarded as a failure to prevent. However, what of financial links that, were they to be cut off, could assist in preventing genocide? Could a state be held responsible? There is no clear decision on this, so what follows is an attempt to assess the various levels of influence and responsibility.

Providing Weapons

Perhaps the most clear example of failing to prevent is the provision of weapons (which, if states knew of the intent to commit genocide, and genocide is indeed found to have been committed, can make them complicit in its commission). Several European countries, including Belgium, Italy, and Spain suspended arms transfer to Israel, and a statement issued by UN experts warned that any transfer of weapons or ammunition to Israel that would be used in Gaza is likely to violate international humanitarian law. As a result of a petition by Dutch NGOs, the Court of Appeal in the Hague ordered the state to stop all export and transit of F-35 fighter jet parts to Israel. In Nicaragua’s application instituting proceedings against Germany, it stated:

Germany has provided political, financial and military support to Israel fully aware at the time of authorization that the military equipments would be used in the commission of great breaches of international law by this State and in disregard of its own obligations. In particular, the military equipment provided by Germany enabling Israel to perpetrate genocidal acts and other atrocities, included supplies to the front line and warehouses, and assurances of future supplies such as ammunition, technology and diverse components necessary for the Israeli military.

para. 13

Given the ICJ’s first provisional measures order on the 26^th of January finding the plausibility of genocide, and the numerous reports detailing grave violations of international humanitarian law, states cannot argue that they did not know of mass violations inflicted upon civilians in Gaza. More recently, the UN Special Rapporteur on the situation of human rights in the OPT issued a report finding that there are “reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met.” One of the recommendations included an arms embargo, as Israel has not complied with the ICJ’s order. Any state providing weapons and military equipment may likely be found responsible for a failure to prevent, considering the substantial evidence of grave violations of IHL and the potential commission of genocide.

Cutting off aid to UNRWA

The UN Relief and Works Agency (UNRWA) provides support for almost 2 million people in Gaza, and has by far the greatest capacity to aid and assist those in Gaza as well as access to different parts of the Strip. As a result of unsubstantiated allegations against it following the ICJ’s order, several major states decided to cut off funding. Within the context of famine setting in and the blocking of aid from entering Gaza and particularly in the north, the severing of UNRWA aid assists in inflicting severe bodily and mental harm (Genocide Convention, Article 1C) upon the population, as well as creating conditions of life calculated to bring about its physical destruction in whole or in part (Article 1C). Reports have detailed how Israel is using starvation as a weapon of war, while UN Special Rapporteur Michael Fakhri has stated that,

Intentionally depriving people of food is clearly a war crime. Israel has announced its intention to destroy the Palestinian people, in whole or in part, simply for being Palestinian. In my view as a UN human rights expert, this is now a situation of genocide. 

Nicaragua also cited Germany’s decision to cut off aid to UNRWA in its application, which “jeopardizes any effective assistance being given to the victims of those very atrocities that Israel is committing,” (para. 14).

While some states have resumed UNRWA funding, within this context of evidence of deliberate starvation and obstruction of aid, states that have cut off this life saving assistance may also be complicit, if they had known of the intent to commit genocide. States may argue that the serious allegations prompted them to suspend aid, but given doubts cast upon the allegations, the immediate measures taken by the Agency against those whom the allegations were made, and consistent Israeli efforts to undermine and dismantle UNRWA, the decision appears to be wholly disproportionate and inflicts greater harm upon the civilian population.

Political, Financial, and any Other Links

The non-exhaustive categories cited in the Bosnia v Serbia case were “political, military and financial links,” as well as “links of any kind.” The Court specifically noted that the strength of these links gave Serbia influence unlike any other state party to the Genocide Convention (para. 434) and it encompassed “all those with whom the Respondent maintained close links and on which it could exert a certain influence,” (para. 435). The responsibility of the authorities was to make “the best efforts within their power to try and prevent the tragic events then taking shape,” (para. 438). As stated previously, states are to contribute to restraining in any degree.

Does this encompass significant trade between countries? One country cutting economic ties may or may not help to prevent genocide, but as the Court pointed out, the duty is to act, and “the combined efforts of several States, each complying with its obligation to prevent” (para. 430) may avert the commission of genocide. As an example, the Japanese company Itochu severed its relationship with Elbit systems, the Israeli defense contractor. The agreement between them was not for the transfer of weapons or the provision of Japanese technology for the Israeli military, but rather to procure material for the Japanese military. Still, as a result of the ICJ’s provisional measures order on the 26^th of January and “that the Japanese government supports the role of the Court,” Itochu Aviation decided to suspend cooperation. This is significant as, while Itochu is a general trading company, the partnership with Elbit was based on a request from Japan’s defense ministry. 

Some may argue that this is not likely to deter the offending state, as the previously cited actions have yet to have an effect on Israel. In fact, Israel has announced its intention to invade Rafah, where an estimated 1.5 million Palestinians have fled to. However, the court noted that “the obligation to prevent genocide places a State under a duty to act which is not dependent on the certainty that the action to be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood of that outcome,” (para. 461). An argument can be made for the fact that several countries, each putting major economic and diplomatic pressure, by cutting off or suspending trade deals, cooperation, and the like, can have a combined effect of, at the very least, restraining Israel. The EU, for example, is Israel’s biggest trade partner, accounting for 28.8% of its trade in goods in 2022. A revision or suspension of the EU-Israel Association Agreement may have an impact and, at minimum, send a message that there is no business as usual when it comes to committing atrocities. Several states took similar action against Apartheid South Africa.

The wording used in Bosnia v. Serbia lends itself to a broad interpretation of the capacity to influence. Given the status of genocide as “the crime of crimes”, and the Genocide Convention’s aim of preventing, and not simply punishing, genocide, it is entirely consistent to construe a state’s obligations to prevent genocide as expansively as possible. In the upcoming Nicaragua v Germany case, the focus appears to be on the provision of weapons (paras. 38-56) and the cutting of aid (paras. 57-66), yet the ICJ may still examine other links and means of influence, and further expand upon the nature of third-state responsibility to prevent genocide. Regardless, and given the apparent disregard of the UN Security Council’s ceasefire resolution, and the issuance of another provisional measures order by the ICJ due to the widespread deprivation of food and other necessities, states owe it to the victims to contribute to restraining the commission of genocide, in the courts’ words, in any degree.