Gaza/Palestine: States have a Duty to Prevent Genocide

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: [email protected]

Katherine Iliopoulos, Legal Adviser, ICJ Middle East and North Africa Programme, email: [email protected]