Hamas openly and expressly declares its genocidal goals in its updated 2017 covenant,20 which has resulted in a constant threat for Israelis as there is no doubt about the genocidal intent of the brutal attacks on and since October 7 and the attacks that have followed since. Consequently, both the families of nine victims of the October 7 Hamas attacks21 and three Palestinian human rights organizations22 have filed complaints with the International Criminal Court (ICC) for genocide (alongside war crimes and crimes against humanity). In response, the Prosecutor has continuously asserted the ICC’s jurisdiction over atrocity crimes committed by Palestinian nationals as well as on the territory of Palestine23 and declared the respective investigations a priority for his Office.24

However, investigations and criminal proceedings of the ICC are usually extensive and lengthy, which begs the question of the role of international law and justice in ongoing conflicts as international judicial bodies may not be best equipped to address and handle situations in a timely and impactful manner, at least not when it comes to individual criminal responsibility. Interestingly, there was also a lawsuit filed against President Biden and other State officials on behalf of several Palestinian human rights organizations, together with Palestinians in Gaza and the U.S., for their failure to prevent and complicity in the (alleged) genocide of the Israeli government against Palestinians in Gaza.25

Leading back to the role of international law in the current situation, or more specifically the obligations of States (rather than individuals) under international law, this comment explores the duties of state parties under the very treaty created to prevent and punish genocide.

The objective of this comment therefore isn’t to determine whether the unfolding events in Israel and the Gaza Strip constitute genocide or a risk thereof but to analyze and explore the concrete legal obligations of States under the Genocide Convention as a reaction to the mounting concerns of there being a “grave risk” for genocide in Gaza.26 Even though this comment does focus on the situation in Gaza, it also includes analyses that relate to the genocidal risk that Hamas and its attacks pose to Israel. It’s important to stress that this comment’s focus is certainly not intended to downplay the barbaric attacks perpetrated by Hamas on October 7 and the attacks that have followed since. They undoubtedly constitute war crimes, crimes against humanity, genocide, and grossly violate the most fundamental values of the international community.27 From the perspective of international law, that much is very clear.

II. The Genocide Convention

A. Background and Overview

After the Military Tribunals at Nuremberg and Tokyo, there was determination within the U.N. to emancipate genocide as a crime distinct from other atrocities, since the tribunals weren’t able to recognize the criminality of atrocity crimes during peacetimes.28 In the eyes of many, this constituted a failure to reflect the “specific evils of genocide” the international community had just been witness to.29 What led to the General Assembly Resolution 96 (I) was therefore the objective to expressly condemn and criminalize genocide as well as to explicitly distinguish it from other mass atrocity crimes, such as war crimes and crimes against humanity.30 The goal was to codify the most fundamental moral values of the international community, which had just been violated in the most reprehensible way. Thus, after the formal request of the G.A., the Economic and Social Council initiated the drafting of the first international human rights treaty, which would provide the first legal definition of genocide and mark an essential step in the development of international human rights law.31

Currently, the Genocide Convention has 153 signatories, including Israel (ratification in 1945), Palestine (accession in 2014), and the United States (ratification in 1988),32 and aims to both prevent and punish genocide through a combination of individual criminal and responsibility.33 Moreover, the International Court of Justice has repeatedly affirmed that the Genocide Convention reflects customary international law, meaning even states that haven’t signed on to the Genocide Convention are legally bound to it.34 In addition, the prohibition of genocide is considered a peremptory (jus cogens) norm of international law as it reflects fundamental values of the international community and presents a threat to international peace.35

As a consequence, the International Court of Justice has further affirmed that the Genocide Convention’s provisions are owed by any State party to all other State parties to the Genocide Convention (erga omnes).36 And because States have a significant interest in compliance with the Genocide Convention’s provisions, any State party “may [therefore] invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations”37 by calling on the International Court of Justice as the competent judicial organ.38

Apart from the commission of genocide, the Genocide Convention also criminalizes the incitement, attempt to, and complicity in committing genocide.39 Furthermore, Article V contains the obligation of States to enact necessary legislation and the obligation to ensure effective penalties.40 Article VI further obliges state parties to try perpetrators charged with genocide,41 while Article VII contains the obligation to grant extradition.42 And though the Genocide Convention has been criticized for being “flawed” or even “conceptually confused,” it has been the most authoritative, widely ratified legal instrument in the international fight against genocide since it entered into force in 1951.43

B. Genocide: Definition and Elements of the Crime

The term genocide dates back to Polish lawyer Rafal Lemkin, who had to flee his homeland after the Nazi occupation.44 Lemkin was an influential figure in the development of international human rights law as well as during the drafting process of the Genocide Convention,45 and first coined the term in his 1944 book Axis Rule in Occupied Europe.46 It is a combination of the Greek word genos (race, nation, or tribe) and the Latin word cide (killing), and offered a linguistic distinction from other atrocities by providing a “neologism for an old crime.”47 As a direct reaction to the military tribunals after the Second World War, the Drafting Committee further characterized genocide as an international crime that can be committed in times of peace as well as in times of war,48 which was particularly impactful at the time since other international crimes needed a connection to war or armed conflict in order to be punishable.49

The Genocide Convention’s definition of genocide,50 has since been widely accepted at both the national and international level. The Statute of the International Criminal Tribunal for the Former Yugoslavia,51 The Statute of the International Criminal Tribunal for Rwanda,52 and the Rome Statute of the ICC53 all adopted this definition of genocide, as have a multitude of domestic legislations.

Under Article II of the Genocide Convention,54 genocide requires two main elements: a committed or attempted underlying act, as well specific intent:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. Imposing measures intended to prevent births within the group;

5. Forcibly transferring children of the group to another group.55 (emphasis added).

To further specify and add to this brief definition, it has been continuously supplemented with judgments, orders, and advisory opinions of the International Court of Justice, the International Criminal Court, and other international tribunals:

Of the five underlying acts, Articles II(a) and II(c)56 may be particularly relevant to the situation in Gaza. The ICC’s Elements of Crimes for example specify that the infliction of conditions of life calculated to bring about its physical destruction may include the “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”57 These acts don’t “immediately kill the members of the group, but […] , ultimately, seek their physical destruction.”58 The current siege of Gaza, which has blocked access to fuel, electricity, food, medicine, and humanitarian aid, could fall under that description.59

As can be deduced from Article II of the Genocide Convention,60 genocide doesn’t require the destruction of a whole group, nor does it require a “numeric threshold.”61 However, it has been argued that in regards to the necessary genocidal intent, the destruction in part does require a “reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership”62 because Article II(a)–(e) continuously use the plural when referring to victims. The aforementioned statements of Israeli officials may indicate intent to destroy the population of Gaza as a whole.

Since the drafting of the Genocide Convention, there’s additionally been a lot of debate around the groups that should enjoy protection and around who specifically should be protected since the Genocide Convention doesn’t include any additional definitions.63 Further, the group itself needs to be the perpetrator’s target because it is precisely that collectivity which enjoys protection under the Genocide Convention64 as “the victim of the crime of genocide is the group itself and not the individual alone.”65 Victims therefore aren’t targeted as individuals but because of their membership to a particular group.

In the context of the current situation, the population of Gaza may be considered a national or ethnical group that is part of the Palestinian population.66 The targeted part of a group can be a subgroup, for example and as is the case in Gaza, if it is a subgroup in a specific geographical area and makes up a substantial part of that group.67

These considerations already explored the second main element of genocide, which can be particularly difficult to prove:68 the specific intent to destroy a group in whole or in part. This dolus specialis, which has to be established in addition to the intent to commit the underlying act(s), is precisely what sets genocide apart from other atrocity crimes (such as crimes against humanity or war crimes),69 as the perpetrator’s actions need to serve this specific ulterior purpose of destruction.70 Genocidal intent can either be proven through an assessment of all the evidence presented in a case, or, in the absence of direct evidence, it can be inferred from all the facts and circumstances.71 Examples are the:

[G]eneral context, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy.72

To this point, public statements and speeches can also be used to assess intent73 and it could be argued that the statements of Israeli officials demonstrate this specific mens rea to destroy.74

Motives of the perpetrators beyond their genocidal intent, on the other hand, are not considered to be a relevant factor.75

C. Obligations of State Parties: Duty to Prevent

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.76 (emphasis added).

Even though Article I expressly includes the prevention of genocide, the Genocide Convention’s focus undoubtedly lies in the criminalization, punishment, and prosecution of the committed crime.77 And while penal elements are extensively covered, Articles I and VIII are the only provisions that, albeit briefly, refer to a preventative approach. Further, Article I is phrased rather ambiguously, thus raising several questions essential to the understanding of the Genocide Convention’s objective:

Firstly, it seems unclear whether Article I is even meant to impose legal duties upon state parties, because the addition of the term undertake (instead of e.g. must or shall) could suggest a more aspirational, programmatic nature of the provision. This choice of language can however be traced back to the Genocide Convention’s drafting history, during which the provision was deliberately moved from the preamble to the main part of the treaty in an effort to adequately convey the binding commitment of states in the fight against genocide.78 In its first landmark case, the ICJ further pointed to the ordinary meaning of the word (e.g. give a pledge or promise), which has since been regularly used in treaty practice to emphasize the binding nature of a provision.79 Apart from the duty to punish and prevent, the ICJ has also affirmed that Article I contains the obligation not to commit genocide.

Secondly, it’s been questioned whether Article I also includes the legal duty for state parties to prevent genocide, or whether the binding nature of the provision only extends to punishment and prosecution. Until the 1990s, the preventative element of the Genocide Convention remained largely unaddressed in legal and political discourse and was even characterized as being “morally pregnant but […] normatively empty.”80 This quickly changed after the international community once again witnessed atrocities being committed on a large scale. Still, in his dissenting opinion in the ICJ’s Bosnian Genocide case, judge ad hoc Kreča argued that Article I does not contain the obligation for state parties to prevent genocide, but merely a “social, moral, even metaphysical duty.”81 He was convinced an obligation for States to prevent would be incompatible with the Genocide Convention’s penal character.82 But his arguments can be easily rebutted since the provision’s binding wording ( undertake to prevent) clearly also extends to the duty to prevent and can’t just be assigned to the first part of the article. The ICC further affirmed that the prevention of genocide is to be seen as a distinct duty, not as part of the deterrent effect of the duty to punish.83

Moreover, the Genocide Convention isn’t just of penal character but rather also contains provisions that address inter-state disputes, state responsibility, and preventative U.N. action.84 Today, the obligatory nature of the duty to prevent genocide is widely recognized and considered to be much more than just a programmatic statement.85 At the same time, the scope of the obligation to prevent remains largely unclear as Article I doesn’t elaborate on what this duty may entail.86 And there’s only one other provision that relates to the treaty’s preventative approach:

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.87 (emphasis added).

This provision contains the option ( may) of treaty parties to involve organs of the U.N., like the Security Council or the General Assembly, in the prevention of genocide. And while Article VIII has acted as a catalyst for institutional and political progress within the U.N., it is non-binding and hasn’t been able to contribute to the debate around obligatory state duties under the Genocide Convention.88 What has been established however, is that the non-binding Article VIII takes on a clarifying function and doesn’t limit State’s duties under Article I to the suggested actions since that interpretation would fundamentally undermine the binding character of the obligation to prevent, leaving it “normatively empty.”89 Thus, the ambiguous Article I remains the only provision that addresses the obligation of state parties, “which is why States still seem to be unaware of even a minimum legal content of the duty to prevent.”90 And even though various States asked for more details to be included in the Genocide Convention during its drafting process, the precise scope wasn’t elaborated upon.91

A thorough legal analysis of Article I utilizing the tools of treaty interpretation is hence needed to determine how States can fulfill the temporal and material dimensions of their obligation to prevent genocide, which is not only an obligation under the Genocide Convention but under international jus cogens.92

1. Treaty Interpretation: Article I

The 1969 Vienna Convention on the Law of Treaties (VCLT)93 and the corresponding customary international law offer the legal tools for the interpretation of international treaties. Article 31(1) of the VCLT is of particular relevance and goes as follows:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.94

The wording ( ordinary meaning) of a provision is seen as the starting point of the interpretative process, before the context, object, and purpose of the treaty in its entirety (including its preamble), are considered.95 In accordance with Article 31(1), the whole process is to be guided by the principle of good faith, which requires the adoption of a reasonable approach and takes the State parties’ initial motivations into account.96 In its landmark Bosnian Genocide Case, the ICJ made use of these techniques of legal interpretation to clarify and elaborate on the duties owed under Article I of the Genocide Convention:

As already analyzed, the wording of Article I ( undertake to prevent) results in the legal duty of States to prevent genocide, which leads to the conclusion of state parties having to adopt “reasonable measures” to fulfill that duty.97 The object and purpose of the Genocide Convention is entirely results-driven with its ultimate aim being to prevent future genocidal acts from unfolding.98 This however doesn’t mean that States owe a certain result but rather that they owe some conduct.99 Still, the question of the precise scope of this obligatory conduct under the Genocide Convention remains.

2. Scope of State Conduct

The ICJ explains States are obliged “to employ all means reasonably available to them, so as to prevent genocide so far as possible.”100 Thus, States have to take all measures within their power through the utilization of a due diligence approach that considers a variety of different factors. The capacity of States to influence perpetrators committing or likely to commit genocide can depend on their geographical distance as well as on any political links and connections (economic, diplomatic, etc.). Legal considerations also play an important role since measures must be in compliance with international law,101 and in “conformity with the spirit and aims of the United Nations.”102 Therefore, the concrete expected conduct varies significantly across situations and depends on the specific circumstances.

Another crucial question regarding owed state conduct under the Genocide Convention relates to the temporal dimension of duties. The text of Article I itself, once again, doesn’t provide any answers. Nevertheless, the ICJ stresses that the obligation to prevent genocide doesn’t just start when perpetration commences, even though a breach of obligation does require a committed genocide (in line with the International Law Commission’s Articles on State Responsibility103).104 But the Court finds the application of this notion to the duty to protect “absurd” and as contrary to the aim of the Genocide Convention, whose “whole point […] is to prevent the occurrence of the act,”105 which is a direct reference to the supplemental means of interpretation laid out in the Vienna Convention on the Law of Treaties:

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

1. leaves the meaning ambiguous or obscure; or

2. leads to a result which is manifestly absurd or unreasonable.106 (emphasis added).

Instead, the Court argued the obligations of state parties and their 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.”107 States also have a duty to assess whether genocide or a serious risk thereof exists in order to be able to determine their owed conduct to prevent under the Genocide Convention.108 It’s further not sufficient for state parties to claim genocide would have occurred regardless of their owed conduct to prevent because such justifications are impossible to prove since combined state conduct may have been able to produce a different result.109

Thus, States must try to reach the Genocide Convention’s aim and are obliged to take active measures in order to fulfill their obligation to prevent genocide under Article I. As a minimum, it’s argued that state parties, which have affirmed an unfolding genocide or a serious risk thereof, are expected to at least denominate the specific situation as such, resulting in the implicit condemnation of the committed acts.110 This obligation exists even for States with limited financial capacity and aims to deter perpetrators by naming and shaming their actions, which has been found to be an effective method of deterrence.111 And since the ICJ asks for effective measures within the framework of international law and within the capacity of a state, naming and shaming genocidal acts or risks thereof may very well be the lowest threshold states are expected to meet.

Furthermore, it’s important to highlight the extraterritorial dimension of the duty to prevent under Article I, meaning that state parties are required to prevent genocide even if it occurs outside of their respective territory.112 These extraterritorial obligations are based on the assumption that genocide presents a threat to global peace, which is why its prevention is seen as a global concern.113 It can therefore be concluded that the duty to take measures to prevent genocide exists regardless of territory or specific links to the state in question.114 The extent of the owed conduct under Article I, however, varies depending on the specific circumstances of a situation.

III. Current Situation in Gaza/Israel: Duty to Prevent?

According to U.N. bodies, civil society organizations,115 scholars,116 NGOs,117 and governments,118 there is reason to believe that the population of Gaza is at least at a serious risk for genocide due to the actions of the Israeli military, which would, in turn, trigger the duty of all State parties to the Genocide Convention to intervene with the aim of preventing an unfolding genocide. And because the prevention of genocide is also part of the international jus cogens, even non-state parties are legally bound to fulfill that very same obligation.

Under Article I of the Genocide Convention and as a first step, each State is thus obliged to assess if a genocide is being committed or if a serious risk thereof exists. If either were to be affirmed, States would then immediately have to take all measures within their power to avert or at least mitigate the situation. In the current situation of Gaza, these measures may include the denomination of genocide or a genocidal risk, targeted sanctions, calls for a permanent ceasefire, as well as the initiation of significant involvement of the appropriate U.N. organs (Security Council, General Assembly, etc.) in line with Article VIII of the Genocide Convention.

And while the exact scope of obligations still remains uncertain, the ICJ has asserted States with particularly strong economic, political, or diplomatic connections are expected to utilize those links and have to meet an increased threshold in order to fulfill their legal duties under the Genocide Convention.119 The United States immediately comes to mind as it maintains particularly close financial, economic, diplomatic, connections to Israel.120 It was also the first country to recognize Israeli statehood in 1948.121 And Since World War II, the United States has supported Israel with 158 billion dollars (not adjusted for inflation), which is much more than it has given to any other country.122 Because of those close links between the two States, the United States has to employ all available means and is expected to meet a higher threshold in terms of owed state conduct under the Genocide Convention. This however doesn’t relieve States with limited links to Israel of their duty to, at the very least, conduct a comprehensive risk assessment analysis. If that assessment leads to the conclusion of there being a serious risk of genocide, States then need to take all measures within their power in an attempt to avert or mitigate that risk.

Currently, several States have already expressed their growing concern about the situation that is unfolding in Gaza and the risk for genocide, including Spanish,123 Brazilian,124 Pakistani,125 and Belgian126 government officials, as well as states of the Arab League and African Union.127 However, States so far128 haven’t taken any meaningful additional measures, which may indicate a breach of their obligations under Article I of the Genocide Convention, particularly for countries with strong links to Israel. Due to its particularly strong economic and political links to Israel, the United States has therefore been repeatedly criticized for its unconditional support and lack of measures to prevent the humanitarian crisis currently unfolding in Gaza. The Center for Constitutional Rights even accused the U.S. of complicity in genocide by arguing that providing weapons with the knowledge that they would be used for genocidal purposes, constitutes a form of complicity.129

Civil society organizations, NGOs, U.N. bodies, and scholars have not only voiced their concerns but also made recommendations on suggested State conduct to ensure compliance with the Genocide Convention.

The aforementioned group of U.N. experts, for example, calls for an immediate ceasefire as the only possible measure to effectively prevent this “genocide in the making” but doesn’t go into alternative or additional steps that could be taken by States:

We are deeply distressed at the failure of Israel to agree to—and the unwillingness of the international community to press more decisively for—an immediate ceasefire. The failure to urgently implement a ceasefire risks this situation spiraling towards a genocide conducted with 21st century means and methods of warfare.130 (emphasis added).

The International Commission of Jurists, on the other hand, has made more detailed recommendations on how State parties should act to fulfill their obligations under the Genocide Convention:

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 U.N. Charter appropriate for the prevention and suppression of any acts of genocide in Gaza, including calling for an immediate ceasefire.131 (emphasis added).

Thus, the International Commission of Jurists is emphasizing the obligation of State parties to take all reasonable measures to prevent the unfolding genocide in Gaza. Like the U.N. expert group, they suggest States call for an immediate ceasefire and help ensure a lifting of the siege, as well as discontinuation of any military action. In addition, they ask States to call on the competent U.N. organs to aid their preventative efforts under the Genocide Convention.132 So far,133 no States have made use of this option. Instead, the U.N. Secretary General António Guterres has formally invoked Article 99 of the U.N. Charter134 for the first time since taking office to ensure the Security Council’s involvement in this “threat to the maintenance of international peace and security.” 135, 136 The resulting Security Council resolution, which was introduced by the United Arab Emirates, called for an immediate humanitarian ceasefire and the release of all hostages, but was vetoed by the United States.137 The General Assembly has since adopted a (unbinding) resolution similar in content, which passed with 153 votes in favor, 10 against (including the United States, Israel, and Austria), and 23 abstentions (including Argentina, Italy, the Netherlands, South Sudan, the United Kingdom, and Ukraine).138

Regarding the risk of genocide against the population of Israel, there has been widespread support from the international community for the Israeli government in their fight against Hamas since the October 7 attacks (naming and shaming). This support has gone beyond statements, with the United States (e.g.) supporting the Israeli military with additional military supplies.139

Because Hamas is a terrorist group, States have limited influence over its actions and little to no diplomatic links to its leaders. There have been no open declarations of support by States or proven military aid. Therefore, there currently isn’t any reason to believe state parties may be violating their treaty obligation to prevent in relation to the risk of genocide against the Israeli people.

IV. Concluding Thoughts and the Role of the ICJ

Although the Genocide Convention might seem like first international law instrument to turn to during a potential unfolding genocide, its current role (and that of international law generally) during such situations is anything but clear, which comes with a number of negative implications. Furthermore, it’s also difficult to determine whether the Genocide Convention is even having a significant impact in the prevention of genocide. Because while it was certainly a strong and crucial statement after World War II and the Holocaust, history shows that the international community has since failed to prevent many genocidal attacks, particularly during the 1990s in Rwanda and the former Yugoslavia.

Those experiences ultimately led to the “resurrection” of the Genocide Convention’s duty of states to prevent genocide.140 But even this so-called “resurrection” hasn’t had the desired effect as genocide is still a regular and ongoing occurrence around the world. Recent examples include (but are not limited to) situations in Myanmar, Yemen, Darfur, Ethiopia, Ukraine, Nagorno-Karabakh, and now (potentially) Gaza/Palestine. In all of these instances, the international community was unable to prevent unfolding genocides. And the experiences from the 1990s don’t seem to have improved the effectiveness of the international community at preventing genocide as early warning signs are frequently ignored despite enormous efforts by civil society organizations, NGOs, and human rights activist.141

This failure to prevent might be explained by diplomatic, political, or economic considerations (to name a few) but also suggests a breach of duty obligations under the Genocide Convention. Regarding already committed genocide, on the other hand, states, international institutions and judicial bodies (such as the International Criminal Court) seem to be much more aware and active, indicating a prioritization of a penal, not a preventative, approach. This approach however shifts the focus away from state responsibilities and their potential preventative duties to the concept of individual criminal responsibility.

One explanation for this could be the apparent emphasis on the criminalization and punishment in the Genocide Convention, as opposed to its prevention. Its preventative aim is only referenced in two ambiguous provisions.142 And although the I.C.J. has clarified and elaborated on what that duty of States may encompass in practice, uncertainty seems to prevail among state parties. It can also be questioned whether the I.C.J., as the competent judicial organ of the Genocide Convention, even possesses the ability or authority to impact unfolding situations in a timely and meaningful manner.

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.143 (emphasis added).

Every State party can therefore ask the Court to determine whether a certain situation constitutes genocide or a serious risk thereof and whether treaty parties are fulfilling their obligations under the Genocide Convention. The Court also has the option of indicating provisional measures144 when there’s a real and immediate risk of irreparable prejudice or consequences and strong sense of urgency.145 Recent cases concerning allegations of genocide have included proceedings initiated by Myanmar and Ukraine.146 In the latter case, Ukraine asked the Court to confirm that Russia’s invocation of genocide to support its unlawful invasion in February of 2022 was not justified. This was as reaction to Russia trying to justify its use of force by claiming to prevent and punish an alleged genocide in the Luhansk and Donetsk regions.147 But the Court found there to be a lack of evidence in support of Russia’s allegation of genocide against Ukraine, which is why it issued an order for provisional measures that obliged Russia to immediately suspend its military operations in Ukraine.148

A similar order could also be a possibility in the current situation as both Israel and Palestine are parties to the Genocide Convention. In the case of Ukraine v. Russia, the Court acted within a few weeks, and was therefore able to respond relatively quickly (in under three weeks).149 At the stage of provisional measures, the alleged violation of the Genocide Convention also doesn’t yet have to be proven. Instead, claims have to be plausible. In the words of the Court, its “task is to establish whether the acts complained of […] appear to be capable of falling within the provisions of the Genocide Convention.”150 As analyzed, this threshold appears to have been reached in the current situation in Gaza.151

Such an order would certainly send a strong message to both Israel and the international community. However, although legally binding on State parties,152 the ICJ lacks a sufficient enforcement mechanism. And while Israel might be more likely to follow an order from the Court than Russia (e.g.), the international community would still have to get involved in order to ensure compliance. Israel’s denial of Palestinian statehood would be another potential issue to contend with.

Theoretically, Palestine (or another State party) could also initiate proceeding on the merits of a potential failure of another State party in fulfilling their obligation to prevent under the Genocide Convention. However, the likelihood of an order for provisional measures against a state party other than Israel seems less likely but could certainly still be a useful option to ensure compliance with the Genocide Convention.

To conclude, it seems to be apparent that international law may not always be best equipped to meaningfully respond to unfolding situations of genocide or other atrocity crimes. On the other hand, treaties like the Genocide Convention have been created precisely for this purpose. It is therefore essential for the international community to consider the repercussion for the legitimacy of international law and its institutions if fundamental international obligations are disregarded. The prevention of genocide, the so-called crime of crimes,153 has to be a priority for the international community in order to uphold the most important values of the international community. The notion of “never again” can’t lose significance and the Genocide Convention provides one crucial legal instrument in the prevention and fight against genocide.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Kofi Annan, Secretary General of the United Nations, Speech at Stockholm International Forum (Jan. 26, 2004), available online. ↩

2. 2.

   Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 [hereinafter Genocide Convention], available online.

3. 3.

   G.A. Resolution 96 (I), UN Doc. A/RES/96(I), The Crime of Genocide (Dec. 11, 1946), available online. ↩

4. 4.

   Id. ↩

5. 5.

   United Nations Economic and Social Council, Sub-Commission on the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide ¶ 14 (Jul. 2, 1985), download. ↩

6. 6.

   Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ, Advisory Opinion, 1958 I.C.J. Rep. 15 (May 28, 1951), available online. ↩

7. 7.

   United Nations Economic and Social Council, supra note 5, at ¶ 14. ↩

8. 8.

   Joseph Biden, President of the United States, Remarks on the October 7th Terrorist Attacks and the Resilience of the State of Israel and its People (Oct. 18, 2023), available online. ↩

9. 9.

   Benjamin Netanyahu, Prime Minister of Israel, Declares War on Palestinian Militants Hamas, Wall St. J., Oct. 7, 2023, video. ↩

10. 10.

    Emanuel Fabian, Defense Minister Announces “Complete Siege” of Gaza: No Power, Food or Fuel, Times of Israel, Oct. 9, 2023, available online. ↩

11. 11.

    Id. ↩

12. 12.

    Other examples include COGAT Chief Addresses Gazans: “You Wanted Hell, You Will Get Hell”, Times of Israel, Oct. 10, 2023, available online; Center for Constitutional Rights, Emergency Legal Briefing Paper 18–23, Oct. 18, 2023, [hereinafter Legal Briefing Paper], available online. ↩

13. 13.

    See Joint Urgent Appeal to UN Special Procedures on Israel’s Total Warfare on Gaza’s Civilian Population, Al-Haq (Oct. 12, 2023) [hereinafter Al-Haq], available online. ↩

14. 14.

    See id.; Legal Briefing Paper, supra note 12. ↩

15. 15.

    See Mohsen al Attar, Public Statement: Scholars Warn of Potential Genocide in Gaza, Opinio Juris (Oct. 15, 2023), available online. ↩

16. 16.

    International Commission of Jurists, Gaza/Palestine: States have a Duty to Prevent Genocide (Nov. 17, 2023), available online. ↩

17. 17.

    Fernando Heller, Podemos Leader Calls for Protests Against Israel’s “Genocide” in Gaza, Euractiv, Oct. 15, 2023, available online; Naveed Butt, Pakistan Terms Gaza Siege Genocide of Palestinians, Business Recorder, Oct. 16, 2023, available online; Press Release, AU, Joint Statement by the African Union Commission and the General Secretariat of the League of Arab States on the Grave Situation in Gaza (Oct. 14, 2023) [hereinafter African Union], available online. ↩

18. 18.

    Raz Segal, A Textbook Case of Genocide: Israel Has Been Explicit About What It’s Carrying Out In Gaza: Why Isn’t The World Listening?, Jewish Currents (Oct. 13, 2023), available online. ↩

19. 19.

    Press Release, OHCHR, Gaza: UN Experts Call on International Community to Prevent Genocide Against the Palestinian People (Nov. 16, 2023) [hereinafter OHCHR Calls for Prevention of Genocide], available online. ↩

20. 20.

    Bruce Hoffmann, Understanding Hamas’s Genocidal Ideology: A Close Read of Hamas’s Founding Documents Clearly Shows Its Intentions, The Atlantic, Oct. 10, 2023, available online; see also Jans David Ohlin, International Criminal Law Analysis of the Situation in Israel, Opinio Juris (Oct. 12, 2023), available online

    (analyzing the October 7 attack as genocidal in nature). ↩

21. 21.

    JP Leskovich, Israeli Families of Hamas Victims File ICC Complaint as Accusations of War Crimes, Genocide Exchanged, Jurist (Nov. 6, 2023), available online; Israel–Palestine: The Role of International Justice, UNRIC (Nov. 17, 2023), available online. ↩

22. 22.

    See Three Rights Groups File ICC Lawsuit Against Israel Over Gaza “Genocide”, Al Jazeera, Nov. 9, 2023, available online.

    (The complaint was filed by Al-Haq, Al Mezan, and the Palestinian Centre for Human Rights). ↩

23. 23.

    Karim A. A. Khan, ICC Prosecutor, Statement from Cairo on Situation in the State of Palestine and Israel (Oct. 30, 2023), available online. ↩

24. 24.

    Karim A. A. Khan, ICC Prosecutor, Statement from Ramallah on the Situation in the State of Palestine and Israel (Dec. 6, 2023), available online. ↩

25. 25.

    Defense for Children International—Palestine v. Biden, CCR, available online (last visited Dec. 19, 2023). ↩

26. 26.

    OHCHR Calls for Prevention of Genocide, supra note 19. ↩

27. 27.

    Jens David Ohlin, International Criminal Law Analysis of the Situation in Israel, Opinio Juris (Oct. 12, 2023), available online; Ryan Goodman, Michael W. Meier & Tess Bridgeman, Expert Guidance: Law of Armed Conflict in the Israel–Hamas War, Just Security (Oct. 17, 2023), available online. ↩

28. 28.

    Björn Schiffbauer, Christian J. Tams & Lars Christian Berster, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary, General Introduction ¶ 9 (2014), paywall, preview archived; Rafał Lemkin: A Hero of Humankind 19 (Agnieszka Bienczyk-Missala & Stawomir Debski eds., 2010), preview archived. ↩

29. 29.

    Id. ¶ 8. ↩

30. 30.

    Id. ↩

31. 31.

    Ratification of the Genocide Convention, OGPRtoP, available online (last visited Dec. 19, 2023). ↩

32. 32.

    Status of Treaties: Genocide Convention, UNTC, available online (last visited Dec. 19, 2023). ↩

33. 33.

    Legal Briefing Paper, supra note 12, at 4. ↩

34. 34.

    Ratification of the Genocide Convention, supra note 31. ↩

35. 35.

    Id.; Prosecutor v. Goran Jelisić, ICTY IT-95-10-T, Judgement ¶ 60 (ICTY TC, Dec. 14, 1999), available online; United Nations Economic and Social Council, supra note 5, at ¶ 16. ↩

36. 36.

    Application of Convention on Prevention and Punishment of Crime of Genocide (The Gambia v. Myanmar), Request for the Indication of Provisional Measures, 2020 I.C.J. Rep. 1 ¶ 41 (Jan. 23, 2020), available online. ↩

37. 37.

    Id. ↩

38. 38.

    See Genocide Convention, supra note 2, at Art. IX. ↩

39. 39.

    Id. Art. III. ↩

40. 40.

    Id. Art. V. ↩

41. 41.

    Id. Art. VI. ↩

42. 42.

    Id. Art. VII. ↩

43. 43.

    Schiffbauer, Tams & Berster, supra note 28, at ¶ 6. ↩

44. 44.

    Id. ↩

45. 45.

    Id. ¶ 11. ↩

46. 46.

    Id. ¶ 8. ↩

47. 47.

    Id. ¶ 19. ↩

48. 48.

    See Genocide Convention, supra note 2, at Art. I. ↩

49. 49.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I, at ¶ 17. ↩

50. 50.

    See Genocide Convention, supra note 2, at Art. II. ↩

51. 51.

    See Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 4 (adopted May 25, 1993, as last amended Jul. 7, 2009) [hereinafter ICTY Statute], available online. ↩

52. 52.

    See Statute of the International Tribunal for Rwanda, S.C. Res. 955, Art. 2 (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩

53. 53.

    See Rome Statute, Art. 6. ↩

54. 54.

    See Genocide Convention, supra note 2, at Art. II. ↩

55. 55.

    Id. ↩

56. 56.

    Id. ↩

57. 57.

    International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010, at 2 (Jun. 11, 2011) [hereinafter Elements of Crimes], available online, archived. ↩

58. 58.

    The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, ¶ 505 (ICTR TC I, Sep. 2, 1998), available online. ↩

59. 59.

    Al Attar, supra note 15. ↩

60. 60.

    Genocide Convention, supra note 2, at Art. II. ↩

61. 61.

    The Prosecutor v. Athanase Seromba, ICTR-2001-66-I, Judgment, ¶ 319 (ICTR TC I, Dec. 13, 2006), available online. ↩

62. 62.

    United Nations Economic and Social Council, supra note 5, at ¶ 29. ↩

63. 63.

    Id. ¶ 30; Schiffbauer, Tams & Berster, supra note 28, at ¶ 21. ↩

64. 64.

    Samuel Totten & Henry Theriault, The United Nations Genocide Convention, An Introduction 20 (2020), preview archived. ↩

65. 65.

    The Prosecutor v. Musema, ICTR-96-13-T, Judgment, ¶ 165 (ICTR TC I, Jan. 27, 2000), available online. ↩

66. 66.

    Legal Briefing Paper, supra note 12, at 4; International Commission of Jurists, supra note 16. ↩

67. 67.

    Id.; Genocide, OGPRtoP, available online (last visited Dec. 22, 2023). ↩

68. 68.

    The Prosecutor v. Jean-Paul Akayesu, supra note 58, at ¶ 523. ↩

69. 69.

    United Nations Economic and Social Council, supra note 5, at ¶ 38; Shane Darcy, The World Court and the Spectre of Genocide: The ICC Is Not the Only Hague Court With Jurisdiction Over Gaza, Just. in Conflict (Oct. 16, 2023), available online. ↩

70. 70.

    United Nations Economic and Social Council, supra note 5. ↩

71. 71.

    Totten & Theriault, supra note 64. ↩

72. 72.

    The Prosecutor v. Radovan Karadžić, ICTY IT-95-5/18-T, Judgment, ¶ 550 (ICTY TC, Mar. 24, 2016), available online. ↩

73. 73.

    Legal Briefing Paper, supra note 12, at 9; see also Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze v. The Prosecutor, ICTR-99-52-A (ICTR TC I, Nov. 28, 2007), available online. ↩

74. 74.

    Al-Haq, supra note 13.; International Commission of Jurists, supra note 16. ↩

75. 75.

    United Nations Economic and Social Council, supra note 5, at ¶ 38. ↩

76. 76.

    Genocide Convention, supra note 2, at Art. I. ↩

77. 77.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 31. ↩

78. 78.

    Id. ¶ 20. ↩

79. 79.

    Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. Rep. 43, ¶ 162 (Feb. 26, 2007) [hereinafter Bosnia v. Serbia], available online. ↩

80. 80.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 21. ↩

81. 81.

    Id. ↩

82. 82.

    Id. ↩

83. 83.

    Id. ¶ 31. ↩

84. 84.

    Id. ¶ 22. ↩

85. 85.

    Björn Schiffbauer, The Duty to Prevent Genocide Under International Law: Naming and Shaming as a Measure of Prevention, 12 Genocide Stud. & Prevention 83, 84 (Dec. 2018), available online, doi. ↩

86. 86.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 31. ↩

87. 87.

    Genocide Convention, supra note 2, at Art. VIII. ↩

88. 88.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 21. ↩

89. 89.

    Id. ¶ 32. ↩

90. 90.

    Id. ↩

91. 91.

    Id. ¶ 22. ↩

92. 92.

    Id. ↩

93. 93.

    Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

94. 94.

    Id. Art. 31(1). ↩

95. 95.

    Schiffbauer, supra note 85, at 85. ↩

96. 96.

    Id. ↩

97. 97.

    Id. ↩

98. 98.

    Id. ↩

99. 99.

    Id.; Bosnia v. Serbia, supra note 79, at ¶ 430. ↩

100. 100.

     Bosnia v. Serbia, supra note 79, at ¶ 430. ↩

101. 101.

     Id. ↩

102. 102.

     Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Request for the Indication of Provisional Measures, 2022 I.C.J. Rep. 211, ¶ 58 (Mar. 16, 2022) [hereinafter Ukraine v. Russian Federation], available online. ↩

103. 103.

     See G.A. Res. 56/83, A/Res/56/83, Responsibility of States for Internationally Wrongful Acts, Annex Art. 4 (Jan. 28, 2002), available online. ↩

104. 104.

     Bosnia v. Serbia, supra note 79, at ¶ 430–31. ↩

105. 105.

     Id. ¶ 431. ↩

106. 106.

     Vienna Convention, supra note 93, at Art. 32. ↩

107. 107.

     Bosnia v. Serbia, supra note 79, at ¶ 431. ↩

108. 108.

     Id. ↩

109. 109.

     Id. ↩

110. 110.

     Schiffbauer, supra note 85, at 86. ↩

111. 111.

     Id. at 87. ↩

112. 112.

     Id. at 86. ↩

113. 113.

     Id. ↩

114. 114.

     Id. ↩

115. 115.

     See id.; Legal Briefing Paper, supra note 12. ↩

116. 116.

     Al Attar, supra note 15. ↩

117. 117.

     International Commission of Jurists, supra note 16. ↩

118. 118.

     See Heller, supra note 17; Butt, supra note 17; African Union, supra note 17. ↩

119. 119.

     Bosnia v. Serbia, supra note 79, at ¶ 430. ↩

120. 120.

     U.S. Relations with Israel: Fact Sheet, U.S. Dept. of State (updated Jan. 30, 2023), available online (last visited Dec. 22, 2023). ↩

121. 121.

     Id. ↩

122. 122.

     Nicole Narea, How the US became Israel’s Closest Ally: The US Has Stood With Israel Throughout History. What Does it Mean for the Gaza War?, Vox, Oct. 13, 2023, available online. ↩

123. 123.

     Heller, supra note 17. ↩

124. 124.

     Maayan Jaffe-Hofmann, Brazilian MPs Challenge President, Visit Israel on Solidarity Mission, The Jerusalem Post, Dec. 7, 2023, available online. ↩

125. 125.

     Butt, supra note 17. ↩

126. 126.

     Priyanka Shankar, “Inhumane”: Top Belgium Officials Criticize Israeli Bombing of Gaza, Al Jazeera, Nov. 10, 2023, available online. ↩

127. 127.

     African Union, supra note 17. ↩

128. 128.

     As of December 15, 2023. ↩

129. 129.

     Legal Briefing Paper, supra note 12, at 11. ↩

130. 130.

     OHCHR Calls for Prevention of Genocide, supra note 19. ↩

131. 131.

     International Commission of Jurists, supra note 16. ↩

132. 132.

     Genocide Convention, supra note 2, at Art. VIII. ↩

133. 133.

     As of December 15, 2023. ↩

134. 134.

     U.N. Charter, Art. 99. ↩

135. 135.

     Id. ↩

136. 136.

     Daniel Forti, Policy Alert: UN Secretary-General Invokes Article 99 in Letter to Security Council on Gaza, Just Security (Dec. 7, 2023), available online. ↩

137. 137.

     Press Release, S.C., SC/15519, Security Council Fails to Adopt Resolution Demanding Immediate Humanitarian Ceasefire in Gaza on Account of Veto by United States (Dec. 8, 2023), available online. ↩

138. 138.

     UN General Assembly Votes by Large Majority for Immediate Humanitarian Ceasefire During Emergency Session, UN News, Dec. 12, 2023, available online; UNGA Demands Ceasefire in Israel’s War on Gaza: How Your Country Voted, Al Jazeera, Dec. 13, 2023, available online. ↩

139. 139.

     Jim Garamone, U.S. Flowing Military Supplies to Israel, as Country Battles Hamas Terrorists, U.S. Dept. of Defense News, Oct. 10, 2023, available online. ↩

140. 140.

     Schiffbauer, Tams & Berster, supra note 27, at Art. I, at ¶ 22. ↩

141. 141.

     See e.g., Ogunsakin Mustapha, Group Warns UN over Imminent Genocide in Ethiopia, Gavel Int’l, Nov. 26, 2021, available online. ↩

142. 142.

     See Genocide Convention, supra note 2, at Arts. I, VIII. ↩

143. 143.

     Id. at Art. IX. ↩

144. 144.

     See Statute of the International Court of Justice, Art. 41, 59 Stat. 103 (Jun. 26, 1945) [hereinafter ICJ Statute], available online. ↩

145. 145.

     Ukraine v. Russian Federation, supra note 102, at ¶ 65. ↩

146. 146.

     Darcy, supra note 69. ↩

147. 147.

     Id. ↩

148. 148.

     Ukraine v. Russian Federation, supra note 102, at ¶ 81. ↩

149. 149.

     Darcy, supra note 69. ↩

150. 150.

     Ukraine v. Russian Federation, supra note 102, at ¶ 43. ↩

151. 151.

     Darcy, supra note 69. ↩

152. 152.

     ICJ Statute, supra note 144, at Art. 41. ↩

153. 153.

     Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Sentence (ICTR TC I, Oct. 2, 1998), available online. ↩