The Obligation to Prevent Genocide in South Africa v. Israel: Finally a Duty with Global Scope?

On 29 December 2023, South Africa instituted proceedings against Israel before the ICJ concerning alleged violations by Israel of its obligations under the Genocide Convention in relation to Palestinians in the Gaza Strip and requested the ICJ to indicate provisional measures. According to the Application, Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide and it has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.

Both states are parties to the Convention, so Article IX is the basis of the ICJ’s jurisdiction, and South Africa’s standing is based on the erga omnes partes nature of the obligations under the Genocide Convention, following other recent cases before the ICJ.

The case will have a deep political impact, but also interesting legal consequences. Independently of the issue of whether the serious violations of human rights and international humanitarian law committed by Israel amount to genocide, the focus of this contribution will be on the scope of the obligation to prevent genocide under Article I of the Convention.

In the Application, South Africa emphasizes (several times) its own obligation to prevent genocide under the Convention:

“South Africa is acutely aware of the particular weight of responsibility in initiating proceedings against Israel for violations of the Genocide Convention. However, South Africa is also acutely aware of its own obligation –as a State party to the Genocide Convention– to prevent genocide” (Application, para. 3).

Regarding its jus standi, South Africa points out not only the erga omnes partes character of the obligations under the Convention (according to the ICJ’s case law) but also its own obligations:

“Given that South Africa’s claim concerns its own obligations as a State party to the Genocide Convention to act to prevent genocide –to which Israel’s acts and omissions give rise– South Africa plainly has standing in relation thereto” (Application, para. 16). 

Finally, in its request for provisional measures, in order to establish prima facie jurisdiction of the Court, South Africa elaborates more on its obligation to prevent:

“The dispute concerns Israel’s breaches of its obligations under the Genocide Convention, including its failure to prevent and its perpetration of genocide, and South Africa’s own obligations under the Genocide Convention to prevent genocide, including by taking actions to influence effectively the actions of persons likely to commit genocide” (Application, para. 127).

In this last passage, South Africa quotes the famous paragraph 430 of the 2007 ICJ’s judgment in the Genocide (Bosnia v. Serbia) case, the source of the wide interpretation of the obligation to prevent genocide.

The obligation to prevent genocide in the ICJ’s case law

The ICJ interpreted the meaning and scope of the obligation to prevent genocide from Article I of the Genocide Convention in its landmark 2007 Judgment. According to the Court, the obligation on the part of states to prevent genocide has a continuous and distinct character, is one of conduct and not one of result (2007 Judgment, para. 430), and it is not territorially limited by the Convention (2007 Judgment, para. 183).

The Court elaborate more on the scope of the obligation to prevent:

“Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the 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 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” (2007 Judgment, para. 430).

The ICJ has revisited the obligation to prevent genocide in its Order on Provisional Measures in the Ukraine v. Russia case:

“The Court observes that, in accordance with Article I of the Convention, all States parties thereto have undertaken ‘to prevent and to punish’ the crime of genocide. Article I does not specify the kinds of measures that a Contracting Party may take to fulfil this obligation” (2022 Order, para. 56).

The ICJ held that the obligation to prevent is incumbent on all states parties to the Convention and that there are several means to fulfil this obligation. Regarding those means, the Court established a link between the obligation to prevent and Articles VIII and IX: “the Contracting Parties must implement this obligation in good faith, taking into account other parts of the Convention, in particular Articles VIII and IX, as well as its Preamble” (2022 Order, para. 56). This was the first time that the Court has drawn a link between the obligation and the compromissory clause under Article IX.

To summarise, according to the ICJ, the obligation to prevent genocide under Article I of the Genocide Convention is incumbent upon all states parties, is not territorially limited and can be fulfilled through several means. Under it, the states parties must employ all means reasonably available to them to prevent genocide as far as possible.

The recourse to the ICJ under Article IX as a form of discharging the obligation to prevent genocide

Elsewhere, I have proposed a new approach that links the obligation to prevent genocide with the compromissory clause in Article IX of the Convention.

Since the obligation to prevent is not limited by territory, one can argue that any state party to the Convention has the obligation to prevent genocide wherever it takes place. But one can also argue that, for several reasons, there will be numerous cases in which the State’s capacity to influence the action of the perpetrators is virtually non-existent, and therefore there could be no breach of its obligation to prevent.

However, the 2007 Judgment recognises that “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” (2007 Judgment, para. 430). 

A state party to the Convention accepting the ICJ’s jurisdiction under Article IX could be in a “particular legal position” with the capacity to prevent genocide through judicial settlement, provided the state concerned also accepts the Court’s jurisdiction, which applies in the case between The Gambia and Myanmar and also in this case. Regarding the first one, authors like Shannon Singh and John Heieck, have pointed out that the submission of the case before the Court could be seen as the fulfilment by The Gambia of its obligation to prevent genocide against the Rohingya, and not only as the invocation of a right under the Convention based in the erga omnes partes nature of the obligations of Myanmar. We can apply the same conclusion to South Africa.

In my previous article, I have conceded that objections could be raised to this innovative approach. The recourse to Article IX is a right and not an obligation, and the ICJ has not affirmed such a radical position.

However, there could be situations of genocide where states –like The Gambia in the Rohingya case and, arguably, South Africa in this case– have no capacity at all to influence the actions of perpetrators. Does it mean that those states have no obligation to prevent genocide in those situations? In its 2007 Judgment, the ICJ held that “if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide […], it is under a duty to make such use of these means as the circumstances permit” (2007 Judgment, para. 431). Submitting a case to the ICJ and asking for provisional measures could be seen as a means likely to have a deterrent effect, so, following the Court’s reasoning, states are under a duty to make use of this particular means.

The Convention, according to the ICJ interpretation, provides a de minimis content of the obligation to prevent in those cases. A state, bound to prevent genocide under Article I, but lacking the means to effectively influence the perpetrators, can, provided its acceptance to the Court’s jurisdiction under Article IX, submit an application to the ICJ. This was the path followed by South Africa, with an express acknowledgment of its obligation to prevent genocide.

Final remarks: The global scope of the obligation to prevent genocide

Although South Africa has not made a direct link between the obligation to prevent and the institution of proceedings under Article IX, its recognition of its own obligations under the Convention is crystal clear in the Application. For the very first time in a judicial proceeding before the ICJ, a State recognizes its obligation to prevent genocide in a territory thousands of kilometres beyond its jurisdiction.

This could be seen not only as a confirmation of the new approach proposed by several authors including myself, but also –and mainly– as a means to make effective the ICJ’s wider interpretation of the obligation to prevent genocide: a duty with global scope.

75 years ago, the Genocide Convention was adopted “in order to liberate mankind from such an odious scourge”. Indeed, if genocide really is such an odious scourge and “the crime of crimes”, therefore all states are under the obligation to prevent it everywhere with the legal means at their disposal. The recourse to the ICJ under Article IX is one of those means.