Nov 22, 2023 | Advocacy, Joint Statement
In light of credible allegations of ongoing violations of international humanitarian law arising from the protracted armed conflict in Israel and the Occupied Palestinian Territory, in particular in the Gaza Strip, the International Commission of Jurists (ICJ), Amnesty International (AI), and Human Rights Watch (HRW) support the call by a number of High Contracting Parties to the 1949 Geneva Conventions addressed to Switzerland, in its capacity as the depository of the four Geneva Conventions, to convene an urgent Conference of High Contracting Parties to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the Fourth Geneva Convention”).
This call is based on Common Article 1 to the four Geneva Conventions, which states that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”. Underscoring the continued relevance of this body of law, the ICJ, AI, and HRW recall operative paragraph 1 of the UN Security Council Resolution 2712 on the situation in the Middle East, including the Palestinian question, of 15 November 2023 demanding “that all parties comply with their obligations under international law, including international humanitarian law, notably with regard to the protection of civilians, especially children.” In the same vein, our organisations recall operative paragraph 2 of the UN General Assembly, entitled Protection of civilians and upholding legal and humanitarian obligations, of 26 October 2023 demanding “that all parties immediately and fully comply with their obligations under international law, including international humanitarian law and international human rights law, particularly in regard to the protection of civilians and civilian objects, as well as the protection of humanitarian personnel, persons hors de combat, and humanitarian facilities and assets”.
The ICJ, AI, and HRW call on all High Contracting Parties to uphold the fundamental principle of international law that treaties must be executed in good faith, and fulfil their obligations under Common Article 1 “to ensure respect” for the Fourth Geneva Convention by participating in the Conference and acting collectively to prevent further violations of international humanitarian law in the Occupied Palestinian Territory and Israel.
The ICJ, AI, and HRW consider that in the circumstances currently prevailing in Israel and the Occupied Palestinian Territory, including, in particular, the Gaza Strip, ensuring respect for international humanitarian law requires, at a minimum, a suspension of arms transfers to the parties to the conflict; ensuring accountability for serious violations of international humanitarian law; supporting and cooperating with the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, and with the International Criminal Court’s ongoing Palestine investigation; and supporting other pathways to accountability including through the principle of universal jurisdiction.
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 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 | News
Arbitrary restrictions and excessive government control.
(Tunis, 7 November 2023) – The draft law on associations submitted by 10 parliamentarians to the Tunisian Parliament on 10 October 2023 would violate the right to freedom of association and endanger civic space in Tunisia if adopted as currently formulated, 8 rights groups said today.
البيان باللغة العربية على هذا الرابط
The draft law, if passed, would replace Decree-Law 2011-88 on associations, which enabled the emergence of a diverse civil society in the aftermath of Tunisia’s 2011 revolution. As presently drafted, it threatens to end more than a decade of work by independent groups. According to official data, over 24,000 civil society organizations are currently registered with the Tunisian authorities, although it remains unclear how many are active today. If adopted in its current form, the draft law would grant the government pervasive control and oversight over the establishment, activities, operations and funding of independent groups, which are one of the last remaining counterweights to President Kais Saied’s autocratic rule.
While the text claims to maintain a notification system for establishing new associations, it would actually introduce a thinly disguised registration system, granting a department under the Prime Minister’s Office the authority to deny a group the right to operate within a month after of registering (article 9.2). Without being required to provide any reasons, the government would also be able to petition the judiciary at any time requesting the cancellation of an association’s registration (article 9.3).
In addition, new organizations would not be allowed to operate until a government-headed “administration of associations” publishes a notice in the Official Gazette, leaving open the possibility of denying a group’s registration. At present, under Decree-Law 2011-88 on associations, an association may begin operating once the representative of the association has notified its registration to the Official Gazette.
Under the draft law, international organizations would be required to obtain prior authorization to register from the Foreign Affairs Ministry (articles 8 and 19). Without setting conditions or deadlines for any such a process, the draft law empowers the Ministry to issue temporary authorizations and to revoke and suspend them at its own discretion (article 20). As a result, international organizations may be arbitrarily denied registration for any reason and without due process, the groups said.
In 2012, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association’s report on best practices related to the right to freedom of association recommended a “notification procedure”, rather than a “prior authorization procedure” requesting the authorities’ approval to establish an association as a legal entity. The 2017 Guidelines on Freedom of Association and Assembly in Africa of the African Commission on Human and Peoples’ Rights stipulate that “registration shall be governed by a notification rather than an authorization regime, such that legal status is presumed upon receipt of notification” and that the administrative body overseeing registration should carry out its functions “impartially and fairly.”
The draft law’s preamble states that associations must operate in accordance with the “principles of national orientation,” and must not “violate laws related to good morals,” “disturb public security,” “undermine the unity of the national territory and the republican system,” or “violate national sovereignty.” Such terms are vague, imprecise, arbitrary and overly broad and, as such, do not comply with the principle of legality. As a result, these concepts are open to broad interpretations and the authorities could use them to justify arbitrarily restricting or closing associations that displease them, the groups said.
The draft law places national organizations under “the supervision and control” of the Ministry relevant to their main area of work and international organizations under Prime Minister Office’s supervision (article 6). The current draft law does not specify what such “supervision and control” entail. It also requires associations to inform the pertinent Ministry of any planned activities (article 13).
The draft law also gives rise to concern about surveillance as it empowers the authorities to establish a digital database of associations and volunteers (article 14).
If the draft law is adopted in its current form, then the authorities may interpret its many vague provisions to ban or dissolve associations. The establishment of associations on religious or ethnic grounds is forbidden in the draft law. In addition, the qualification that a group’s work must be “voluntary” may be interpreted as a ban on paid labour by non-profit groups (article 2). The draft text further provides that the Prime Minister’s Office can “automatically” dissolve any group “suspected of terrorism” or that has a “terrorist background” (article 24), without judicial review.
This text also dangerously conflates associations with unions (article 15), which are currently separately governed by the Tunisian labour law, without providing any specific guarantees or sufficient protections for union rights.
National associations would have to obtain prior approval from the Prime Minister’s Office before receiving foreign funding (article 18). Associations that fail to comply with this requirement would risk immediate suspension or dissolution (article 24).
The draft law requires all existing associations to “rectify” their situation in accordance with the new law within a year of the law’s publication.
In 2013, the Special Rapporteur on the right to freedom of peaceful assembly and of association’s report affirmed that a civil society organization’s access to funding from domestic, foreign and international sources was “an integral part of the right to freedom of association.” Requiring groups to get prior government approval to receive foreign funding without specifying the grounds for refusal is inconsistent with the principle of legality and constitutes an arbitrary interference with the right to freedom of association.
Under Article 38 of the Guidelines on Freedom of Association and Assembly in Africa, governments may neither impose blanket bans on foreign funding for civil society groups nor require prior government authorization to receive it.
Decree-Law 2011-88 on associations provides sufficient guarantees and procedures to ensure that civil society groups’ funding be transparent and law compliant, the groups said. The draft law’s foreign funding provisions are open to abuse and may be used to punish and reject funding for organizations critical of the government.
In February 2022, a draft law on associations prepared by the executive that threatened human rights safeguards was leaked and denounced as restrictive by the Tunisian civil society. Shortly after, on 24 February 2022, President Saied announced his intention to “prevent foreign funding to associations.” In light of this, UN experts expressed concern over the then draft law in a communication to the Tunisian authorities in April 2022, to which the Tunisian government responded in June 2022, confirming their intention to amend Decree-law 88.
Since 25 July 2021, President Saied has dismantled Tunisia’s democratic institutions, undermined judicial independence, stifled the exercise of freedom of expression and repressed dissent.
Tunisia is obliged to respect, protect, promote and fulfill the right to freedom of association, guaranteed by Article 22 of the International Covenant on Civil and Political Rights and Article 10 of the African Charter on Human and Peoples’ Rights. Restrictions on the exercise of this right may be permissible only when they are prescribed by law and necessary in a democratic society; that is, using the least restrictive means possible and reflecting basic values of pluralism and tolerance.
“Necessary” restrictions must also be proportionate; that is, carefully balanced against the specific reason for imposing them in the first place. In addition, they may not be discriminatory, including on the grounds of national origin or political opinion or belief.
The Tunisian authorities should refrain from adopting the proposed draft law and, instead, should commit to safeguarding the right to freedom of association as enshrined in Decree-law 88 and under international human right law binding on Tunisia, the groups said. The authorities should ensure that associations are able to operate without political interference, intimidation, harassment or undue restrictions.
Signatories:
1-International Commission of Jurists (ICJ)
2-Euromed Rights
3-Human Rights Watch (HRW)
4-Avocats Sans Frontières (ASF)
5-Access Now
6-World Organisation Against Torture (OMCT)
7-Tahrir Institute for Middle East Policy (TIMEP)
8- International Service for Human Rights (ISHR)
Nov 6, 2023 | News
Today, the African Court of Human and Peoples’ Rights (AfCHPR) opens its 71st Ordinary Session. To mark the occasion, the International Commission of Jurists (ICJ), in collaboration with inkyfada, looks back at AfCHPR’s September 2022 judgement against Tunisia, in which it ordered the republic to return to constitutional democracy and establish an independent constitutional court. The ICJ examines the impact of the judgement on human rights in Tunisia, and how individuals can operationalize the AfCHPR to challenge the curtailment of fundamental freedoms, judicial independence and rule of law in Tunisia.
ICJ’s questions and answers:
It has been more than a year since the African Court on Human and People’s rights issued its judgment in case No. 017/2021, “Ibrahim Ben Mohamed Ben Brahim Belguith v. Republic of Tunisia”, of 22 September 2022. The case was brought by Mr. Belguith, a national of Tunisia and a lawyer, who complained of violations of his rights under the African Charter on Human and Peoples’ Rights and other human rights instruments as a result of the promulgation of several Tunisian presidential decrees adopted under the “state of exception” pursuant to article 80 of the 2014 Constitution since 25 July 2021. In this judgment, the African Court ordered Tunisia to repeal these decrees, to return to constitutional democracy within two years and to ensure the establishment and operation of an independent constitutional court within the same period.
What does this judgment mean and why is it important for the rule of law and human rights in Tunisia? The ICJ provides answers in the Q&A below:
-
- What is the African Court on Human and Peoples’ Rights?
* The African Union
* The African Charter on Human and Peoples’ Rights
* The African Commission on Human and Peoples’ Rights
* The African Court on Human and Peoples’ Rights
* Tunisia’s adherence to the African Human Rights System
-
- Why was the African Court seized of the situation in Tunisia? Contextual overview
* President Kais Saied’s power grab of 25 July 2021
* The absence of a Constitutional Court
-
- What did the 22 September 2022 judgment rule?
* How the African Court came to rule on the matter: the application
* What the judgment ruled:
-
- What are the next steps?
* Implementation
* Other complaints against Tunisia pending before the African Court
Download the full Q&A in English here
Download the full Q&A in French here
Download the full Q&A in Arabic here
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
