E-ISSN 2014-0843
CIDOB opinion THE LEGAL OBLIGATION TO PREVENT GENOCIDE IN GAZA Claudia Saba, Adjunct Professor at Blanquerna, Ramon Llull University Despite the International Court of Justice’s order that ruled “plausible” genocide in Gaza, some governments continue to support Israel with weapons while simultaneously disrupting aid to the trapped Gazan population. These actions amount to an abrogation of the duty to prevent genocide under both international law and within national jurisdictions.
796 W APRIL 2024
hen a genocide is underway, the international community has a moral and legal imperative to act. This is enshrined in the Genocide Convention, but it is also an obligation erga omnes, binding all states. Sadly, history teaches us that states are sometimes complicit in assisting regimes that commit genocide and atrocity crimes. This complicity comes in many forms: the provision of weapons, financial support, and diplomatic cover that shields perpetrators from accountability. The International Court of Justice´s (ICJ) interim order on 26 January 2024 in the case brought by South Africa against Israel on the charge of violating the Genocide Convention is binding on Israel first and foremost. However, just as the same Court affirmed twenty-years earlier in an Advisory Opinion, violations by one state carry obligations for all state signatories to prevent and not be complicit in atrocity crimes. This includes the Crime of genocide, according to the Convention. In other words, even non-signatories to the Genocide Convention have that obligation, also thanks to peremptory principles to prevent genocide. For this reason, third parties must take note of the ICJ´s order or risk facing accusations of complicity in genocide particularly if they supply Israel with the material means to carry out its military operations, as Nicaragua is arguing in its separate case against Germany. In its comprehensive written arguments, South Africa has accused Israel of contravening the Genocide Convention, highlighting attacks on medics, hospitals, and ambulances, all of which are prohibited under International Humanitarian Law, but which have acquired an even graver character as comprising genocidal acts, accompanied by genocidal intention. South Africa’s lawyers were careful to contextualize Israel´s aggression on Gaza as the latest in a long history of subjugation that the Palestinians have endured under military occupation. In its order, issued two weeks after the hearings, the Court found there was plausibility in the charge of genocide and issued six urgent provisional measures that Israel must comply with. In their essence, the measures require the prevention of acts of genocide that fall under Article II of the Convention as well as the provision of urgently needed services and humanitarian assistance. All the publications express the opinions of their individual authors and do not necessarily reflect the views of CIDOB as an institution.
CIDOB opinion 796. APRIL 2024
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