On December 29, 2023, South Africa filed an application instituting proceedings against Israel before the International Court of Justice (the ICJ), concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) in relation to Palestinians in the Gaza Strip (the Application). The ICJ is the principal judicial organ of the United Nations. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States; and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.
The Application alleges that, “acts and omissions by Israel… are genocidal in character, as they are committed with the requisite specific intent… to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnic group” and that “the conduct of Israel — through its State organs, State agents, and other persons and entities acting on its instructions or under its direction, control or influence — in relation to Palestinians in Gaza, is in violation of its obligations under the Genocide Convention.”
Genocide, as defined in Article II of the Genocide Convention, is an identity-based crime – the prohibited acts aimed at the destruction, in whole or in part, of a national, ethnic, racial or religious group. As such, apart from showing the existence of the prohibited acts, one has to show that they were perpetrated against a protected group with the specific intent to destroy the group, in whole or in part. This element of the crime is often difficult to prove. The Genocide Convention imposes obligations in Article I to prevent and punish the crime of genocide. As per the ICJ judgment of 2007, “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. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harboring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.”
R&I – TP
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