South Africa v Israel, provisional measures and the obligation to prevent genocide

SOAS Law Professor Lutz Oette and Dr Michelle Staggs Kelsall contextualise South Africa v. Israel before the International Court of Justice ruling and discuss the implications of this case on international law and human rights protection. 

South Africa’s launch of proceedings against Israel before the International Court of Justice (ICJ) has met with a range of hostile responses, including allegations of it engaging in ‘genocidefare’. Politicising the application by attacking South Africa’s motives, the abuse of the notion of genocide, or both appear to be barely disguised attempts to pre-emptively delegitimise an adverse ruling against Israel. In doing so, such responses do a disservice to both the prevention of genocide and the responsibility of states – and by virtue of its judicial function, the Court – to prevent atrocity crimes.

The 'crime of crimes': a high threshold to meet

The threshold which the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention) sets out for a legal finding of genocide is high. It requires establishing the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, through specifically enumerated acts. This is appropriate, as genocide is conceptualised as an exceptionally serious crime, the ‘crime of crimes’. 

Such status is reflected in the limited number of cases, both before international criminal tribunals and the ICJ, which have resulted in a conviction or a finding of states' responsibility for genocide. 

A post-Rwanda focus

Yet those who accuse South Africa of abusing the ‘label’ of genocide ignore a significant development. It was the very seriousness of genocide that shifted the institutional focus of the United Nations (UN) firmly toward prevention in the aftermath of what happened in Rwanda in 1994. The UN Secretary-General appointed the first Special Adviser on the Prevention of Genocide in 2004. 

One year later, the World Summit Outcome document adopted by the UN General Assembly articulated the ‘responsibility to protect’ principle whereby ‘the international community’, which includes states and UN bodies, ‘help[s] protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’ As documented in numerous UN reports and despite since being used as a justification for humanitarian intervention resulting in the use of force, UN mechanisms and organs, particularly the Security Council, have repeatedly failed to take timely action to prevent international crimes, including genocide. 

A history of institutionalised failure, a change in response

It is this history of institutionalised failure which made the ICJ’s order of provisional measures in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) ground-breaking. The application was brought by a state not directly affected acting in the common interest to prevent genocide. In exercising its functions as the principal judicial organ of the UN, the Court issued the order with a view to safeguarding the rights of those whom the Genocide Convention was meant to protect. It did so against the background of its wider jurisprudence on provisional measures, by setting out a plausibility test which prima facie evidences a possible violation of the Genocide Convention (‘capable of falling within the provisions of the Genocide Convention’). The Court answered affirmatively based on the evidence provided in the case. 

The ICJ ruling on provisional measures in the case will have momentous implications and repercussions for the future of international law and international human rights protection. 

The implications of this precedent are far-reaching. Where a Court finds a substantiated prima facie risk of genocide, the respondent states needs to comply with any of the binding provisional measures ordered. All other states, due to the erga omnes nature of the obligation to prevent genocide, must refrain from any acts that might aid and assist its commission. The Court has thereby assumed a critical function in the international law architecture on the prevention of genocide. It can hear allegations of violations of the Genocide Convention and issue binding rulings within a short period of time. Importantly, in so doing, it is neither subject to the political vagaries – or, to be more precise, institutional stalemate – of the UN Security Council nor suffering from the limited visibility and impact that may characterise interventions by other UN bodies. What is more, it exercises the role of adjudicating disputes that the 153 states parties to the Genocide Convention have assigned to it; the Court thereby helps, where warranted, to protect populations at risk of genocide. 

The obligation of compliance has an important bearing on how provisional measures are implemented. Article 94(1) of the Charter of the United Nations makes it clear that states are to comply with any decision of the ICJ. In the case of the Genocide Convention, compliance is not likely to lead to enforcement by the Security Council. In its resolution 819/1993, following the order for provisional measures in Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro), the Security Council treated such measures as not amounting to a judgment of the Court (only a decision), which implies that they could be referenced but did not need to be assured. However, the Court has determined in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) that compliance creates a legal obligation with which states are required to adhere. 

As such, the obligation of compliance may invoke a state’s responsibility in international law, for which non-compliance can result in an internationally wrongful act and its ensuing consequences. In the case of obligations owed to the international community as a whole, that is, erga omnes, this may require states to ensure a continued duty of performance, cessation and non-repetition, and reparations for injury when ensuring the obligation to prevent under Article 1 of the Genocide Convention is fulfilled. 

Provisional measures and the obligation to prevent in real terms

The clause in Article 9 of the Genocide Convention, which confers jurisdiction on the ICJ in case of disputes, may be viewed as inviting frivolous applications by states alleging that other states have committed genocide. Indeed, Israel accused South Africa of doing so. However, a resulting Court order likely will aim to have the effect of stopping ongoing violations of international humanitarian law and international human rights law, regardless of whether they eventually meet the threshold of genocide. 

As already noted, the determination of whether a state is responsible for genocide is a question to be decided on the merits, which is subject to a high evidentiary standard. Further, even though the plausibility threshold may be considered relatively low, a finding of, essentially, a risk of genocide presupposes serious violations. An applicant states, therefore, still needs to provide a credible body of evidence of what are typically large-scale violations, such as mass killings, systematic torture, destruction of livelihoods, mass displacements or similar acts, as well as, through the nature of these or other acts, such as statements, an indication of genocidal intent. 

Where it fails to do so, as was the case where the former Yugoslavia alleged that bombings by NATO member states fell within the scope of the Genocide Convention, the Court will give such a contention short shrift. South Africa’s 84-page long detailed application testifies to its awareness of the seriousness of raising an allegation that the respondent states has violated and is violating the Genocide Convention. If there is prima facie evidence of genocidal acts, the ordering of provisional measures furthers several objectives ostensibly recognised by members of the ‘international community’, namely the prevention of genocide, the responsibility to protect populations from international crimes, and the UN Charter’s preamble that ‘reaffirm[s] faith in fundamental human rights, in the dignity and worth of the [meaning “every”] human person’.

Instead of accusing states such as The Gambia or South Africa of having sinister or otherwise problematic motives, their invocation of the Genocide Convention in the cases against Myanmar and Israel should be welcomed. On their face, they embody the erga omnes nature of the prohibition of genocide, which all states worldwide have an interest in upholding. 

It should, therefore, conversely, be questioned why other third states have refrained from calling on the ICJ in situations of a risk of genocide and thereby acted detrimental to the interests of the ‘international community’ as proclaimed in UN documents. This applies particularly to Western states portraying themselves as committed to international law and human rights protection. Any underlying motives of states bringing an application under the Genocide Convention before the ICJ must be considered irrelevant in any case; either the application is merited on the substance and thereby helps to protect rights under the treaty, or the ICJ will dismiss it, in which case adverse outcomes, including reputational ones, for the respondent states(s) will be limited.

Momentous implications

South Africa’s application to the ICJ must be viewed in light of all these considerations. Its submission of a body of evidence, which draws on numerous UN and other sources and is contextualised against the background of a wider history of occupation, apartheid, human rights violations and impunity, set out a series of ongoing violations. Many observers view it as establishing a prima facie violation by Israel of its obligations under the Genocide Convention.

Israel’s response relied on it acting in self-defence rather than with genocidal intent. The right to self-defence, whose applicability in respect of the Hamas attacks are legally complex and has been controversial, is, however, subject to necessity and proportionality, and cannot justify violations of international law such as genocide. Israel portrayed itself as a highly ethical states whose conduct in respect of Gaza is guided by upholding its international law obligations. However, this position contradicts its flouting of international law and a well-documented history of human rights violations. 

A resulting Court order likely will aim to have the effect of stopping ongoing violations of international humanitarian law and international human rights law, regardless of whether they eventually meet the threshold of genocide. 

In recent years, numerous UN reports have expressed alarm about the deteriorating human rights situation and the consequent suffering of Palestinians. In addition, attributing the extraordinarily high civilian casualties in Gaza and the dire humanitarian situation solely to the conduct of Hamas does not square with the decision to deploy indiscriminate weapons and the assessment of UN bodies and other observers on the ground. It is also difficult to square with the number of dehumanising statements and indiscriminate portrayals of the Palestinian people as enemies who need to be defeated or Gaza as territory that Israel needs to take over (which, at the very least, points to ethnic cleansing).

The ICJ ruling on provisional measures in the case will have momentous implications and repercussions for the future of international law and international human rights protection. The Court’s ruling will, particularly in the Global South and by those critical of hegemonic tendencies of Western states in international law, serve as a litmus test for both the efficacy of the Court as a UN organ and the equality of states. Israel is, as any other state, subject to international law. Yet, it is also an example of what happens when international law obligations are not taken seriously and can be violated with impunity, aided by the support of powerful states. 

Holding Israel accountable conveys an important message that applies to all states; a state’s security concerns must not trump its obligations to respect international humanitarian law and international human rights law and the rights of a people, including its right to survival. The crucial question not directly at issue in the current ICJ proceedings that needs to be posed to Israel, not least as a prerequisite for stopping cycles of violations and as the foundation for a sustainable solution to the conflict, is: what is Israel doing to guarantee the Palestinian right to self-determination? 

Header image credit: UN Photo/ICJ-CIJ/Frank van Beek via ICJ.