Nov 17, 2023
Photo by Amir Shiri on Unsplash
LEGAL BRIEFER: States’ Duty to Prevent Genocide under the 1948 Genocide Convention
This legal briefer focuses on States’ duty to prevent genocide under international law. However, the International Commission of Jurists (ICJ) notes that there are credible allegations of other serious crimes under international law having been committed in the course of the ongoing hostilities in Israel and the Occupied Palestinian Territory, including the Gaza Strip.
Given the scale and severity of Israel’s ongoing attacks on Gaza, reports that Israel has now killed over 11,000 civilians, including over 4,000 children, in the Gaza Strip since 7 October 2023 and recent warnings, including by a group of independent United Nations human rights experts on 16 November that, “grave violations committed by Israel against Palestinians in the aftermath of 7 October, particularly in Gaza, point to a genocide in the making”, the ICJ urges States to fulfil their international legal obligations, including in particular under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (hereafter the Genocide Convention), and take immediate action to prevent acts of genocide in Gaza.
Acts of Genocide
Article II of the Genocide Convention defines the crime of genocide outlining its two main elements:
(1) specific underlying acts, namely, the material elements of the crime; and
(2) specific intent, namely, the mental state required of the person committing the material elements of the crime.
The Genocide Convention and the Rome Statute of the International Criminal Court (ICC) outline the following five specific underlying acts, any one of which may be constitutive of the crime of genocide:
- Killing members of a national, ethnical, racial or religious 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;
- Imposing measures intended to prevent births within the group; and
- Forcibly transferring children of the group to another group.
The ICC Elements of Crimes define the term “conditions of life” as including but not limited to “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”
The ICJ considers that the complete blockade of Gaza – coupled with depriving civilians of water, food, medicine, electricity and fuel – may constitute the specific underlying act of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction”, as per the genocide definition set out above.
Some of the underlying acts of the crime of genocide may also simultaneously constitute the material elements of certain war crimes or crimes against humanity.
Specific Intent
The distinguishing feature of genocide is that the perpetrator commits the specific underlying acts of the offence with the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
The Palestinian people constitute a national group for the purposes of the Genocide Convention. The Palestinians of the Gaza Strip constitute a substantial proportion of the Palestinian nation.
The ICJ is concerned that certain statements by senior officials and politicians in Israel disclose evidence of what may be characterised as intent to destroy Palestinians of the Gaza Strip.
For example, on 9 October, the Israeli Defence Minister Yoav Gallant said, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we act accordingly.” On 10 October, the head of the Israeli Army’s Coordinator of Government Activities in the Territories (COGAT), Maj. Gen. Ghassan Alian, addressed a message directly to Gaza residents: “Human animals must be treated as such. There will be no electricity and no water, there will only be destruction. You wanted hell, you will get hell”. On 13 October, the Israeli Defence Minister said: “Gaza won’t return to what it was before. We will eliminate everything.”
The ICJ is concerned that such statements by officials responsible for Israel’s ongoing military offensive in Gaza, with their expressed emphasis on siege on the Gaza Strip, on depriving the population of essential needs, on the total destruction and elimination of everything and everyone in the Gaza Strip and on evacuation – taken together with well-documented patterns of reported crimes under international law in Gaza, such as indiscriminate bombardment of densely populated areas, including airstrikes resulting in extensive civilian casualties, attacks on medical units, transports and personnel, refugee camps, evacuation routes, humanitarian corridors and other vital civilian infrastructure, collective punishment and the forced transfer of over one million Palestinians from northern Gaza to the south – disclose evidence sufficient to trigger the duty of each State to take reasonable action to seek to prevent acts of genocide in Gaza.
The Duty to Prevent
Notwithstanding individual criminal liability for acts of genocides outlined above, under international law, States have a duty to prevent acts of genocide.
It is not necessary for a definitive determination that genocide is taking place. As the International Court of Justice (“the Court”) held in Bosnia v Serbia, a “State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” The ICJ considers, based on the above, that such threshold has been reached in Gaza, triggering States’ duty under international law to take measures to prevent acts of genocide.
The totality of destruction by Israeli forces against Palestinians in Gaza, as documented in numerous open sources, should guide an assessment by the international community and individual States as to whether genocide is underway or whether there exists a serious risk of genocide, triggering the corresponding duty to prevent it. States’ legal obligation to prevent genocide is not a passive obligation, but rather, according to the Court in Bosnia v Serbia, “implies that each State party must assess whether a genocide or a serious risk of genocide exists”.
When the Court issued its order for provisional measures in The Gambia v. Myanmar in January 2020, it held that there was no requirement of demonstrating violations of obligations under the Genocide Convention, but rather that “the acts complained of … are capable of falling within the provisions of the Genocide Convention”.
The Genocide Convention imposes a minimum legal obligation on States to each take reasonable action to contribute toward preventing genocide, a duty that extends extraterritorially and applies regardless of whether any one State’s actions alone are sufficient to prevent genocide. The Court in Bosnia v. Serbia held that States with strong political links to the State concerned have a greater duty to use their influence in this regard, as the duty to prevent varies from State to State depending on its:
“capacity to influence effectively the action of persons likely to commit, or already committing, genocide. 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 Court also held that, “if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent, it is under a duty to make such use of these means as the circumstances permit”. Third State responsibility may be incurred if a State manifestly fails to take all measures that are within its power to prevent acts of genocide, and that might contribute to preventing such acts.
Recommendations
In light of the above, the ICJ calls upon States who have a position of influence with the Government of Israel – particularly the United States – to take all reasonable measures within their power to prevent genocide in Gaza, including by calling for a ceasefire, taking steps to ensure the lifting of the siege and preventing the displacement of Palestinians outside the Gaza Strip, and to discontinue any military assistance, including arms sales, that would enable or facilitate genocide, and other crimes under International law.
The ICJ urges other States to immediately act under article VIII of the Genocide Convention, by calling on the competent organs of the United Nations, including the UN Security Council, and particularly the UN General Assembly, to take urgent action under the UN Charter appropriate for the prevention and suppression of any acts of genocide in Gaza, including calling for an immediate ceasefire.
The ICJ also calls on UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, and the Office of the Prosecutor of the ICC, to rapidly expand their investigations in relation to the situation in Palestine to include genocide.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, email: said.benarbia@icj.org
Katherine Iliopoulos, Legal Adviser, ICJ Middle East and North Africa Programme, email: katherine.iliopoulos@icj.org
Nov 7, 2023
Yesterday, the International Commission of Jurists (ICJ) and Amnesty International (AI) jointly submitted an amicus curiae legal brief to the Bangkok South Civil Court in a class-action lawsuit filed by two residents of Cambodian villages, representing at least 23 families out of a potential class of more than 700 affected families in the Oddar Meanchey Province, Cambodia, against Mitr Phol Sugar Corporation Ltd., a Thai company.
This lawsuit, based on Thai and Cambodian tort laws, alleges human rights abuses committed by Mitr Phol’s apparent subsidiary in Cambodia, Angkor Sugar Co. Ltd.
In 2008, Angkor Sugar Co. Ltd. was granted an economic land concession to operate an industrial sugar plant in Oddar Meanchey Province. The complaint alleges that after the concession was granted, Angkor Sugar Co. Ltd. colluded with local authorities to forcibly seize land held by individuals from local communities, resulting in the destruction of their houses, the burning of villages and crops, and physical harm to some villagers.
This marks the first-ever class-action lawsuit filed in Thai courts by plaintiffs from another country for abuses committed by a Thai company outside of Thailand.
Today, the Court held a session to examine the list of evidence submitted by both parties. The next appointment date will be on 27 March 2024 for the examination of evidence, after which the court will set the witness examination date.
The ICJ/AI amicus brief sets out the principal applicable international human rights law and standards, and comparative jurisprudence for the Thai court to consider in resolving this case. The organizations submit that the human rights responsibilities of a parent company, such as Mitr Phol, extend beyond its own conduct to include the activities of subordinate entities. To this end, Mitr Phol has a duty to exercise due diligence in monitoring and controlling their subsidiaries in Cambodia, whose conduct they may influence. Failure to carry out this due diligence should result in liability as a consequence of the actions of their subsidiaries.
The brief also highlights that under international standards, business enterprises have a responsibility to respect all internationally recognized human rights wherever they operate, such as the right to adequate housing.
The Thai court itself also has a duty that extends beyond the national borders of Thailand to ensure access to justice, effective remedy, and reparation for individuals from communities living in proximity to the operations of Thai companies and their subsidiaries in other countries when their rights are violated.
The need to apply international human rights standards is recognized by the government of Thailand, as evidenced in the adoption of its National Action Plan on Business and Human Rights, and is also recognized by Mitr Phol through the company’s Code of Conduct.
Background
Victims of corporate human rights abuses face multiple barriers in holding companies to account and securing access to justice.
Although this case is the first of its kind in Thai courts, in recent years, other cases involving human rights abuses committed by Thai state-owned enterprises abroad were brought to Thai courts by Thai citizens, but they ended with limited success. These cases included an unsuccessful lawsuit brought by Thai villagers against Thai governmental agencies regarding the construction of the Xayaburi Dam in Lao PDR and its transboundary environmental destruction affecting communities in Thailand.
The limitations identified encompass the legal nature of corporations, evidentiary challenges, conflict of laws, and statutes of limitation.
Despite calls from CSOs to initially address the weak implementation of the first NAP, Thailand’s Second National Action Plan on Business and Human Rights (2023-2027) was endorsed by the Thai Cabinet on 25 July 2023.
The NAP identifies ‘cross-border investment and multinational enterprises’ as one of the four key priority issues in the NAP. The Second NAP includes an action point that requests the Ministry of Justice to “study and recommend amendments to the laws or propose measures to ensure access to justice and effective civil, criminal and administrative remedies for local and overseas communities within the areas where companies or Thai state-owned enterprises operate and are affected by such operations.”
The submission in English can be downloaded here
The submission in Thai can be downloaded here
Further reading
Thailand: Barriers persist in access to justice for victims of human rights abuses involving Thai transnational corporations abroad – ICJ report
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
Nov 3, 2023 | News
Former Deputies and Mayors Face Prosecution and Prolonged Incarceration for Political Speech.
The Turkish government should abide by international law and implement the binding judgments of the European Court of Human Rights (ECtHR) by immediately releasing politicians Selahattin Demirtaş and Figen Yüksekdağ, who formerly co-chaired the opposition Peoples’ Democratic Party (HDP), four rights organizations said today.
The four nongovernmental organizations—Human Rights Watch, the Turkey Human Rights Litigation Support Project, the International Commission of Jurists, and the International Federation for Human Rights—made their call on the seventh anniversary of the politicians’ wrongful imprisonment.
“The seventh anniversary of the unlawful incarceration of Selahattin Demirtaş and Figen Yüksekdağ is a stark reminder of the Erdoğan presidency’s willingness to use detention for political ends to silence democratically elected opposition politicians representing millions of Kurdish and leftist voters in Turkey,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “In defying the binding ECtHR judgments ordering the politicians’ release, Turkey is flagrantly violating its legal obligations under the European Convention on Human Rights and international law more broadly.”
On November 4, 2016, months after being stripped of their parliamentary immunity, Demirtaş, Yüksekdağ and eight fellow members of parliament from the HDP were arbitrarily detained and placed in pretrial detention, with four others incarcerated over the following five months. At the time, the HDP held 10.7 percent of seats in Turkey’s parliament and was backed by over five million voters. While the 12 other deputies whose cases are covered in the ECtHR judgments are no longer in detention, Demirtaş and Yüksekdağ remain incarcerated.
All the former parliamentarians have been repeatedly prosecuted in individual proceedings based exclusively on their exercise of their right to freedom of expression, protected under international law. This included their political speeches and activities, which did not involve or advocate violence. When a mass trial was opened against them in 2021, many of those ongoing individual case files were merged. The vague and wide-reaching accusations against them in this trial include allegations of “undermining the unity and territorial integrity of the State” (separatism) and even “murder.” These accusations relate to their support for protests that mainly took place in cities in southeast Turkey between October 6 and 8, 2014. The politicians have been held responsible for all offences allegedly committed over the course of these protests, which were organized against the brutal siege of the Kurdish-majority northern Syrian town of Kobane by the extremist armed group Islamic State (also known as ISIS). During the protests, 37 people reportedly died.
The evidence against the politicians, on the basis of which Demirtaş and Yüksekdağ are currently detained, consists of two social media postings supporting protests over the Kobane siege sent from the HDP Twitter account, together with the politicians’ nonviolent political speeches, lawful activities, and witness statements against them added to the case file years later that raise serious questions of credibility.
The ECtHR determined in three judgments—two pertaining to Demirtaş in November 2018 and December 2020, and one to Yüksekdağ and 12 others in October 2022—that their detention on the basis of speeches and social media postings was a politically motivated move to silence them, “stifling pluralism and limiting freedom of political debate, the very core of the concept of a democratic society.” The court found that their rights to liberty, to freedom of expression, and to be elected had been violated. The facts forming the basis on which Demirtaş and Yüksekdağ are detained and were prosecuted for in the 2021 mass trial are substantially the same as those contained in the proceedings which the ECtHR found to be insufficient grounds for their detention.
“Despite the European Court ruling that the grounds to justify Yüksekdağ and Demirtaş’s detention were insufficient, the Ankara public prosecutor in April 2023 requested their conviction on numerous alleged offences concerning their political speech, which may result in their life imprisonment without parole,” said Temur Shakirov, interim director of the International Commission of Jurists’ Europe and Central Asia Programme. “This underscores the ultimate political motives behind the ongoing case targeting the two and reinforces doubts about the fair administration of justice in the country.”
After Demirtaş and Yüksekdağ’s detentions in November 2016, Turkey held a landmark referendum and several crucial election campaigns. The April 16, 2017 constitutional referendum introduced a system of governance concentrating power in the hands of the president. It was followed by the June 24, 2018 presidential election in which Demirtaş ran as a candidate from his prison cell against President Recep Tayyip Erdoğan, the March 31, 2019 local elections, and, most recently, the May 14-28, 2023 parliamentary and presidential elections.
“With two prominent figures of the opposition in detention, the country has been deprived of a significant measure of meaningful democratic debate and fair elections around these crucial campaigns,” said Reyhan Yalçındağ, vice president of the International Federation for Human Rights. “With the March 2024 local elections fast approaching, the Committee of Ministers and the other Council of Europe bodies need to use all available means to ensure the end of the continuing violations of Demirtaş’s and Yüksekdağ’s rights, including their rights to participation in public affairs, which is also a violation of the rights of millions of voters.”
The Council of Europe’s Committee of Ministers, responsible for overseeing member states’ implementation of ECtHR judgements, has issued six decisions and two resolutions calling on Turkey to release Demirtaş from detention. At its December 5-7 session this year, the Committee of Ministers will for the third time examine Turkey’s failure to implement the judgment pertaining to Yüksekdağ and release her from detention.
The four nongovernmental organizations have made a joint submission to the Committee of Ministers asking it to issue a decision in December calling for the release of Yüksekdağ.
“Turkey has ignored the Committee’s numerous decisions and interim resolutions calling for Demirtaş’s immediate release. This refusal to comply with Turkey’s international obligations has been repeated in the case of Yüksekdağ,” said Ayşe Bingöl Demir, director of the Turkey Human Rights Litigation Support Project. “The Committee must intensify its scrutiny against Turkey in relation to these cases without further delay, and this must include the triggering of infringement proceedings, in line with the route rightly followed in the case of the imprisoned rights defender Osman Kavala.”
Eighteen other elected former party officials and mayors from the HDP and an affiliated party, the Democratic Regions Party, are also currently detained. Among them is the prominent former elected mayor of Diyarbakır, Gültan Kışanak, detained since October 25, 2016, and Sebahat Tuncel, former co-chair of the Democratic Regions Party, detained on November 6, 2016. Kışanak’s pretrial detention has exceeded the legal limit of seven years under Turkish law, notwithstanding that seven years’ pretrial detention is a flagrant violation of international human rights law. The detentions of the politicians are blatantly arbitrary and politically motivated, and those imprisoned should be immediately released, the organizations said.
Press release in Turkish: Turkey Demirtas and Yuksekdag press release TURKISH
Nov 2, 2023 | News
The International Commission of Jurists renews its call for an immediate ceasefire in the Gaza Strip following the most recent Israeli attacks on the densely populated Jabalia refugee camp in northern Gaza on 31 October and 1 November 2023.
According to the Gaza Health Ministry, the two strikes killed at least 195 people. The Israel Defence Forces (IDF) claimed that the 31 October airstrike targeted and killed Ibrahim Biari, a claim Hamas denied. The IDF further claimed that Biari was one of the Hamas commanders responsible for the 7 October attacks in Israel.
Intentionally directing an attack against civilians or civilian objects or intentionally launching an attack knowing it will cause disproportionate civilian harm is a war crime. The Office of the UN High Commissioner for Human Rights expressed concern that these attacks may be “disproportionate attacks that could amount to war crimes”.
Gaza’s Health Ministry maintains that the number of Palestinians killed since 7 October has surpassed 9,000 and the Committee on the Rights of the Child has expressed concern that more than 3,500 children have been killed.
The ICJ considers that an immediate, durable and fully respected ceasefire by all sides, and an immediate cessation of hostilities in the Gaza Strip, including direct, indirect and disproportionate attacks on civilians and civilian objects, are necessary to stop further loss of civilian life.
According to the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, there is already clear evidence that war crimes may have been committed in Israel and Gaza since 7 October.
In this regard, the ICJ notes the visit by the Prosecutor of the International Criminal Court, Karim Khan KC, to the Rafah Crossing on the Gaza-Egypt border on 29 October 2023 and, in particular, commends his commitment to investigate the ongoing attacks, and his call for all further attacks to cease immediately. The Prosecutor confirmed that his Office has an ongoing investigation with jurisdiction over the Palestine situation, including current events in Gaza.
In light of the above, the ICJ considers that, only an immediate ceasefire will prevent war crimes, and prevent the risk of crimes against humanity and genocide.
The ICJ calls upon Palestinian armed groups to adhere to their obligations under international humanitarian law, including by releasing all hostages in their custody, and urges the IDF, particularly its military advocate generals, to ensure full respect for international humanitarian law in the conduct of hostilities.
Contact:
Said Benarbia, Director, ICJ’s Middle East and North Africa Programme, email: said.benarbia@icj.org
Katherine Iliopoulos, Legal Adviser, ICJ’s Middle East and North Africa Programme, email: katherine.iliopoulos@icj.org
Oct 19, 2023 | News
The International Commission of Jurists (ICJ) condemns the strike on al-Ahli hospital in the Gaza Strip on 17 October 2023, which according to the Palestinian Health Ministry killed more than 500 Palestinian civilians, mainly women and children, and injured hundreds more.
“Civilians and hospitals must be protected at all times”, said Said Benarbia, Director of the ICJ’s MENA Programme. “Intentional attacks on hospitals may amount to war crimes under international humanitarian law and must cease immediately”, added Benarbia.
Palestinian sources have said that the massacre was caused by an Israeli air strike. The Israeli Defence Forces have denied any responsibility, claiming that it was caused by a failed rocket launch by Palestinian armed groups.
Under the Geneva Conventions and customary international humanitarian law, States have an obligation to investigate war crimes with a view to bringing alleged perpetrators to justice.
The ICJ calls on the Office of the Prosecutor of the International Criminal Court (ICC) to allocate the necessary resources to respond to the escalating situation in Israel and Gaza with a view to investigating and establishing criminal responsibility for alleged war crimes and other violations of international humanitarian law committed by both parties.
According to the ICC Prosecutor Karim Khan, the ICC has jurisdiction over potential war crimes committed by Palestinian armed groups in Israel and Israelis in the Gaza Strip, even though Israel is not a State party. In 2015, Palestine acceded to the ICC Statute. In 2021, the Court ruled that its jurisdiction “in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
On 12 October the Israel Defence Forces (IDF) ordered the entire population of northern Gaza, that is, more than 1 million people, to evacuate to southern Gaza within 24 hours in advance of a likely military ground offensive.
On 14 October, the World Health Organization (WHO) strongly condemned Israel’s repeated orders for the evacuation of 22 hospitals in the Gaza strip, and called on Israeli authorities to protect health facilities, health workers, patients and civilians.
“The Israeli evacuation order was issued in the absence of safe passage or a safe destination. It may amount to a transfer of parts of the population of the occupied territory, a war crime under the ICC Statute and a serious violation of international humanitarian law”, said Benarbia.
Under international humanitarian law, hospitals and other medical facilities are considered to be protected civilian objects. Unless they are used for military purposes, they shall be protected at all times and may not be the object of attack.
Under international humanitarian law, all parties to an armed conflict have an obligation to distinguish between military and civilian targets and to take all feasible precautions to protect civilians from attacks and from the effects of military operations. Indiscriminate attacks on civilians and civilian objects, including those perpetrated using weapons that are indiscriminate by nature, amount to breaches of international humanitarian law. Intentionally directing attacks against civilians amounts to war crimes under the under the Statute of the ICC and customary international law.
Furthermore, the ICJ is deeply concerned by reports of the use of white phosphorus by Israel in other military operations in Gaza and Lebanon.
“Israel must refrain from using white phosphorus, and any other means and methods of warfare that are inherently indiscriminate or that cause superfluous injury or unnecessary suffering”, added Benarbia.
White phosphorus has the potential to cause civilian harm due to the severe burns it causes and its lingering long-term effects on survivors. While it is not per se a prohibited weapon under international humanitarian law, its use in densely populated areas, such as the Gaza Strip, is prohibited as it violates the international humanitarian law requirement that parties to the conflict take all feasible precautions to avoid civilian injury and loss of life.
The ICJ also condemns the continued detention by Palestinian armed groups of approximately 200 hostages.
“Hostage-taking is prohibited under international humanitarian law, and those detained must be released immediately”, said Benarbia.
The ICJ also reiterates calls by the United Nations Secretary General, WHO and others for the establishment of a humanitarian corridor to enable humanitarian aid to enter the Gaza Strip.
Contact:
Said Benarbia, Director of the ICJ’s Middle East and North Africa Programme, email: said.benarbia(at)icj(dot)org
