Accountability through the Genocide Convention

The Genocide Convention has become the focus of significant debate and controversy with three high profile cases brought before the ICJ in the last five years, alleging a violation of this historic human rights treaty.

By way of a brief background, the Genocide Convention, formally known as the Convention on the Prevention and Punishment of the Crime of Genocide, was drafted in response to the Holocaust. The atrocities committed during World War II underscored the need for an international legal framework to prevent and punish the crime of genocide. As a result, the convention was adopted on 9 December 1948, and came into force on 12 January 1951.

The Genocide Convention came to the international spotlight on 11 November 2019 when Gambia instituted proceedings against Myanmar before the ICJ, alleging violations of the Genocide Convention. The Gambia argued that, “the Myanmar military and security forces began ‘clearance operations’ against the Rohingya group” and termed them as genocidal acts. In January 2020, the Court ordered provisional measures against Myanmar and the case is pending before the international court right now.

While the international community was analysing the underpinnings of the genocide case filed in 2019, Ukraine on 27 February 2022 filed an application before the ICJ, instituting proceedings against Russia under the same Genocide Convention. This time, Ukraine alleged that, “the Russian Federation has falsely claimed that acts of genocide have occurred in Ukraine, and on that basis declared and implemented a ‘special military operation’ against Ukraine.” The ICJ has accepted jurisdiction and the Court has fixed 2 August 2024 as the time-limit for the filing of the Counter-Memorial by Russia.

The third and the most pressing issue that is testing the waters of the Genocide Convention is the case filed by South Africa. On 29 December 2023, South Africa instituted proceedings before the ICJ, against Israel, alleging a violation of the Genocide Convention. South Africa contends 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 ethnical group.”

From amongst the three, the Gaza conflict is the worst failure of the international community. With more than 36,500 lives lost till date, the indiscriminate killing continues in blatant violation of international law and the express directions of the ICJ.

Following the institution of proceedings by South Africa in December 2023, the sheer level of atrocities committed by Israel have forced the international community to come out and call for legal accountability. Till date, Mexico, Libya, Colombia, Nicaragua and Palestine have officially intervened in the proceedings against Israel, calling for a halt to genocide in Gaza. At the same time other countries including Turkey, Malaysia, Jordan, Bolivia, the Maldives, Namibia, Pakistan, Venezuela and Brazil have officially endorsed South Africa’s legal initiative. However, the issue remains that although the ICJ has gone as far as ordering Israel to “immediately halt its military offensive” in Gaza, the Court has still shied away from explicitly classifying Israel’s actions as genocide.

Establishing genocide under international law has always been an uphill battle. As per the Genocide Convention, proving genocide requires establishing two elements: mental and physical. Both these elements have their own determining factors. To start with, the physical element is easier to prove as actions can be seen and accounted for. For an action to constitute genocide, the action undertaken towards a group need to include one of five acts which include killing; causing serious bodily or mental harm; inflicting conditions on life calculated to bring about its physical destruction; imposing measures intended to prevent births; and, forcibly transferring children. The mental element includes, “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” and is harder to prove in most cases.

In Israel’s case, the devastation of Gaza makes for a very strong case of genocide. The mass killing, the displacement and enforced disappearances, the widespread torture, the inaccessibility of basic necessities like food, water, shelter and medicine, and the “total siege” that threatens to kill the remaining population are enough to fulfil the physical element of genocide.

Intent is harder to prove but it can be inferred from actions combined with statements made by those in power. Furthermore, international tribunals have also established that indirect intent can consist of a manifest pattern of similar conduct over time. In Israel’s case, enough evidence has come to light, primarily through facts on the ground and statements made by Israel’s own officials, that the intent requirement can be deemed to be fulfilled. The nature and scale of the atrocities and the referral to Palestinians as “human animals” amongst other harrowing statements made by Israeli officials have led many to claim the commission of genocide in Gaza.

Historically, the ICJ has set a high bar for establishing genocide. In South Africa’s case, one main deterrent to finding a case of genocide will be ICJ’s own ruling in Croatia v. Serbia that when the intent is not stated explicitly, genocide can be inferred from conduct if it “is the only inference that can reasonably be drawn from the acts in question”. Israel has put forth multiple arguments in support for its actions, denying genocide. Whether they are reasonable or not remains for the court to decide.

This time the court would be wise to look beyond its established jurisprudence and find that an intent of genocide can be inferred from physical actions and state behaviour. We live in a time when the entire international community is looking towards the Court for establishing its jurisprudence on genocide. With 7 states intervening in Gambia v. Myanmar, 32 states intervening in Ukraine v. Russia and 5 states intervening in South Africa v. Israel, more and more states are demanding accountability for the worst of the crimes that our world has had to witness.

Published in The Express Tribune, June 7^th, 2024.

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