Genocide Convention

From Palepedia

The Convention on the Prevention and Punishment of the Crime of Genocide, commonly referred to as the Genocide Convention, is a binding international treaty that defines and criminalizes genocide, prohibits both acts of genocide and acts that would lead to a genocide, requires all adopting parties to punish such acts, and sets up the judicial framework whereby member states can "trigger" the United Nations into either taking action to prevent acts of genocide from taking place or investigate charges against a state engaging in genocidal activity in the International Court of Justice.[1]

The Genocide Convention lists the following five acts, any of which alone would constitute a violation of the Genocide Convention if conducted with "[an] intent to destroy, in whole or in part, a national, ethnical, racial or religious group":[2]

  • the killing of members of such a group, or
  • causing them serious bodily or mental harm, or
  • imposing living conditions intended to destroy the group, or
  • preventing births/limiting reproduction, or
  • forcibly transferring children out of the group.

The Genocide Convention was unanimously adopted by the United Nations on December 9, 1948, and has been in effect since January 12, 1952.[3] The full text of the genocide convention is available from the website of the United Nations.

Background and universal applicability[edit | edit source]

The Genocide Convention is generally accepted to have been passed in response to the horrors committed on a massive scale during World War II, in particular, the Holocaust. The intent of the Genocide Convention was to prevent a repeat of the targeted, intentional elimination of a specific group going forward by not only empowering the members to take action such a crime in the future but in fact legally mandating them to take measures to prevent such an atrocity and to punish anyone engaging in genocidal activity.

According to legal scholars and human rights groups, the Genocide Convention is considered to be a "customary law", or one that applies to anyone and everyone —even nations or parties that haven't signed or aren't party to the convention. Importantly, the International Court of Justice, also known as the World Court, has likewise ruled that the laws against genocide are universal and no nation can ever be exempted for acts of genocide.[4]

Legal obligation to prevent genocide[edit | edit source]

Aside from setting up a framework to define genocide and other war crimes, the ICJ has ruled on several occasions that Genocide Convention also presents a binding, legal mandate that obligates member states to take whatever actions fall under their purview to act to prevent a genocide or a possible genocide from taking place.[5][6] In Bosnia v. Serbia, the International Court of Justice ruled[7] that

[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.

In fact, this binding obligation for Genocide Convention signatories to take decisive action when they learn about a potential genocide is one of the reasons why countries like the United States go to such lengths to avoid using the word, whether in the context of Rwanda[8][9] or Palestine.[10]

In the case of Rwanda, it was revealed years later that despite the Clinton administration being intensely aware of the ongoing genocide and, in fact, using that very word in internal discussions and communications, US President Bill Clinton and Secretary of State Madeleine Albright went to great lengths to avoid publicly acknowledging the situation "because the president had already decided not to intervene."[8]

While many nations cite the "difficulty" in definitively classifying an ongoing military onslaught resulting in significant loss of civilian life as a genocide as a roadblock to taking preventative or punitive measures, the ICJ has made clear that such a definitive classification isn't necessary in order to trigger a member nation's active obligation to take definitive measures to prevent a genocide, ruling in The Gambia v. Myanmar in January 2020 that the only requirement is that "the acts complained of […] are capable of falling within the provisions of the Genocide Convention," (emphasis added).[11]

The ICJ also ruled in Bosnia v. Serbia regarding the use of verbiage or claims along the lines of "it's not clear a genocide is taking place" as an excuse to avoid taking action, rejecting outright such an argument:[12]

This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences ; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, 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 harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit

Obligations[edit | edit source]

The measures a state is legally obligated to take in the event of acts that may constitute a genocide depend on the size and scope of the crimes allegedly being committed, the political or military influence of the state under obligation to take action, and the nature of the relationship (if any) between the state engaged in potential genocide and the state obligated to prevent it. As the ICJ wrote in its ruling in Bosnia v. Serbia:[12]

[A] State can be held responsible for breaching the obligation to prevent genocide […] [the state's] 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.

Importantly, being unable to fully or even partially stop a state from committing genocide does not lift the obligation to take whatever actions are available to the state to ameliorate the situation, as this obligation to take whatever measures are available to a state to prevent a genocide is a "duty that extends extraterritorially and applies regardless of whether any one State’s actions alone are sufficient to prevent genocide":[7][12]

On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result — averting the commission of genocide — which the efforts of only one State were insufficient to produce.

Invoking the Genocide Convention[edit | edit source]

Charges of genocide can be formally brought against individuals in different legal venues. Depending on the approach pursued and the legal venue the charges are filed in, different rules apply for determining who is allowed to bring charges of genocide or raise concern about a potential genocide in the making.

As mentioned earlier, the ICJ has ruled that it's not necessary for a case involving the wholesale targeting of slaughter of a specific people to be definitively/conclusively a case of genocide before taking actions (from preventative measures to invoking the Genocide Convention), ruling that the only requirement is that "the acts complained of […] are capable of falling within the provisions of the Genocide Convention."[11]

Directly with the United Nations[edit | edit source]

In 1951, a delegation of Black Americans composed a 237-page petition to the United Nations entitled We Charge Genocide, laying out their claim that the horrific treatment of Blacks in the United States (in the 1950s, not historically or under slavery) met the criteria set forth in the Geneva Convention to be classified as a genocide.[13] On December 17, 1951, a copy of the petition was handed to a UN official in New York, and African American author and sociologist WEB Du Bois was scheduled to address a UN delegation in Paris, but was prevented from traveling by the US State Department.[14] The 125 copies of the petition mailed in advance to Paris never reached and were allegedly intercepted by the US.[15]

While international press gave the petition coverage and were sympathetic to its claims, it was ignored by the bulk of the US media. Eleanor Roosevelt, former First Lady and American UN delegate who had previously attempted to prevent Du Bois from addressing a 1947 UN delegation in New York,[16] called the petition "ridiculous".[14] The UN never officially acknowledged receipt of the petition, due to US pressure.[14][17] Raphael Lemkin, a Zionist and a lawyer known for coming up with the term "genocide" and advocating for the establishment of the Genocide Convention,[18] argued it couldn't be a genocide since the African American population was increasing in size[19] — an argument that would later be used in the same manner to criticize anyone suggesting Israel was committing a Palestinian genocide.

In the International Criminal Court[edit | edit source]

The International Criminal Court is an international criminal tribunal, independent from the United Nations, established under the charter of the Rome Statute as an independent judicial body headquartered in The Hague, Netherlands (which is why the ICC is often referred to as The Hague). It was established to provide a non-partisan international venue where serious crimes (such as genocide, war crimes, crimes against humanity, and "the crime of aggression") could be referred so the subject of a referral could be investigated, and if the investigation findings warrant, subsequently charged, arrested, tried, and (in the case of a guilty verdict) sentenced.[20]

Per the Rome Statute,[21] which expanded on the Genocide Convention, the ICC has jurisdiction over these crimes and can investigate and prosecute individuals, though only in specific cases:

  • The crime took place within the territory of a state party to the Rome Statute,
  • The crime was committed by a national of a signatory to the Rome Statute,
  • The crime is referred to the ICC by the UN Security Council, where the United States, China, France, Russia, and the United Kingdom have unrestricted veto power.[22]

Additionally, the ICC only has jurisdiction in cases where a country's government is itself unable or unwilling to prosecute war crimes or crimes against humanity.[23]

There are 123 states that have signed the Rome Statute and are parties to the International Criminal Court;[24] exceptions include China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey, all of whom never signed the Rome Statute, as well as Egypt, Iran, Israel, Russia, Sudan, Syria, and the United States, who signed but never ratified the document. Additionally, Burundi and the Philippines were once members of the ICC but withdrew after the ICC opened investigations into their governments' actions.[25]

The ICC has several limitations that make it difficult to pursue most of the crimes that come under its purview in "real time", chiefly:

  • It is limited in terms of who may be referred for investigation and prosecution, except in the rare case that the P5 permanent members of the UN Security Council all come to an agreement – to date, this has been done in the cases of Darfur and Libya.[26]
  • The ICC does not have any way of compelling individuals with an outstanding arrest warrant to appear before the court; as such it is often reliant on the compliance of the individual's state of residence or the help of more powerful countries with military or geopolitical leverage.[26]
  • Some countries have laws on the books empowering them to go to any lengths, including war, against the Hague any nation operating on its behalf to detain any of their military personnel or political officials; the United States passed such a law (known as the Hague Invasion Act) in 2002.[27][28]
  • The ICC has limited financial and personnel resources and relies on member states to provide the bulk of such resources for investigations and proceedings. Without the explicit blessing of some of the larger and richer world powers, this can be a difficult undertaking.[26]
  • Only individuals – not countries – may be investigated and tried in the ICC; as such it is often only after a regime change (and after the crimes in question have been indelibly completed) that former leaders are referred to the Hague, such as in the cases of Slobodan Milošević and Radovan Karadžić for their role in the Bosnian Genocide.

2018 ICC investigation into Israel[edit | edit source]

In 2018, the ICC Prosecutor Fatou Bensouda announced a preliminary investigation into Israel for its war crimes committed against Palestinians during the 2018 Israel war on Gaza, at the request of Palestine.[23] While Israel is not party to the ICC, Palestine became a member in January 2015 and asked the ICC for an investigation into crimes it alleged Israel committed, based on its right to do so under the Rome Statute (which came into force for Palestine on April 1, 2015).[29] In response, US National Security Adviser John Bolton threatened to unleash sanctions on The Hague and any country aiding the ICC in an investigation into US or Israeli officials, saying "If the court comes after us, Israel, or other US allies we will not sit quietly. [..] We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead. [..] We will not allow the ICC or any other organization to constrain Israel’s right to self-defense."[30] The United States closed the Palestinian diplomatic mission in Washington DC as punishment for its request to the ICC for an investigation and the ICC case has never progressed past the preliminary investigation stage.[30]

On December 19, 2019, Bensouda issued a statement saying that after conducting a thorough investigation spanning over five years, she was "satisfied" that "war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip," and that "cases arising from the situation would be admissible" in an ICC tribunal, and that such an investigation would serve "the interests of justice." She refrained, however, from making any charges due to the "unique and highly contested legal and factual issues attaching to this situation," referring to the Israeli occupation of Palestine, and requested a jurisdictional ruling to re-iterate that the ICC would have jurisdiction over the crimes her investigation had yielded. Bensouda left office in 2021 without taking further action on the matter.[31]

2023 ICC investigation into Israel[edit | edit source]

In November 2023, five ICC member states (South Africa, Bangladesh, Bolivia, Comoros, and Djibouti) filed a joint request to ICC Prosecutor Karim Khan seeking an investigation into possible war crimes, crimes against humanity, and genocide committed by Israel in Palestine in the context of the 2023 Israel war on Gaza,[32][33] although the previous 2018 investigation was never closed. The office of the ICC prosecutor had already declared its jurisdiction over the conflict after the events of October 7th (via Palestine's status as a signatory, as Israel is not a member state).[34] While (as noted above) Khan's predecessor, Fatou Bensouda had conducted a thorough investigation into Israel's crimes in the occupied Palestine territories and concluded that serious crimes had indeed taken place, Khan himself has appeared to take a more partial view of the situation, only formally denouncing Hamas as having possibly committed war crimes on the 7th of October but refraining from condemning Israel's response except to say that it had an "obligation" to follow international law and the Geneva Convention.[32] Khan also later visited Israel, which is not a signatory to the Rome Statute or an ICC member state, to meet with and express his support for the families of those taken hostage. In his later meeting with Mahmoud Abbas in Ramallah, he praised what he called Israel's system for "ensuring compliance with international humanitarian law." As a result to what was largely viewed as a highly biased visit with priorities that did not reflect the scale of the yet ongoing slaughter of civilians in Gaza, Palestinian human rights groups refused to meet with Khan.[35] Khan was elected to the office of ICC prosecutor in 2021 and was widely considered to be the preferred candidate for the job by both Israel and the United States — two countries that not only are not ICC member states or Rome Statute signatories but also have been extremely critical of the ICC and its investigations in the past, spoken strongly against its jurisdiction over war crimes, and, in the case of the United States, even imposed sanctions against the Court and its (former) prosecutor.[36]

History of Palestine's ICC jurisdiction efforts[edit | edit source]

Palestine had previously (unsuccessfully) attempted to get the ICC to investigate war crimes committed by Israel on different occasions. After the cessation of hostilities in Israel's 2008-2009 war on Gaza ("Operation Cast Lead"), American human rights lawyer Francis Boyle, who was involved in developing the indictment against Slobodan Milošević for genocide, war crimes, and crimes against humanity in Bosina, advised Palestinain Authority President Mahmoud Abbas to file a declaration with the ICC under Article 12, Paragraph 3 of the Rome Statute, accepting the ICC's jurisdiction over any and all war crimes committed in the Palestinian territories from July 1, 2002 onward.[37] In 2012, over three years later, ICC Prosecutor Luis Moreno Ocampo declared the petition invalid because the Rome Statute only permits "States" to make such a declaration while Palestine was only afforded "observer entity" status within the United Nations at the time.[38] Boyle considers this rejection from the ICC to be politically motivated and legally baseless.

Later that year on November 29, 2012, Palestine achieved full state recognition in the UN (as a non-member observer state)[39][40] over the strenuous objections of both Israel and the United States,[41] but the ICC ruled in November 2013 that this recognition did not "cure the legal invalidity" of the 2009 petition for an ICC investigation.[42] Palestine Minister of Justice Saleem Al-Saqqa and General Prosecutor Ismaeil Jabr then attempted to file a new declaration with the ICC in June of 2014, but the ICC rejected the petition on the grounds that only the head of state, head of government, or minister of foreign affairs may file such a declaration giving the ICC jurisdiction. According to an Aljazeera investigation, the ICC, which had by then transitioned to the leadership of Fatou Bensouda,[43] was unable to obtain such confirmation that the declaration was being made on behalf of the Palestinian government after sending an inquiry to the then-Palestinian Minister of Foreign Affairs, Riyad Al-Maliki, and as such, rejected the petition.[44]

It later confirmed that in 2014 that PLO President Abbas came under fire from within his own party for dragging his feet with the ICC application, at the time claiming that he had concerns an ICC application would open up Palestinian militias to investigation.[45] However, Hamas had already made a public appeal to Abbas in June of 2014 to apply for ICC jurisdiction and for an ICC investigation into war crimes committed in Palestine.[46] In August of 2014, in response to Abbas's alleged concerns for Palestinian militias, Hamas, Palestine Islamic Jihad, Fatih, the Popular Front, and other resistance parties signed a document backing Palestine's application for ICC jurisdiction.[47][45][note 1]

On January 1, 2015, a third declaration accepting ICC's jurisdiction for war crimes committed in the Palestinian territories, this time covering crimes from 13 June 2014 onward, was then submitted by the Palestinian government to the ICC.[51] Palestine also acceded to the Rome Statute (among other international treaties) on January 2, 2015,[52] with Bensouda accepting Palestine's declaration and its status as a state party and almost immediately opening an preliminary war crimes investigation.[53] Palestine became a full member of the ICC in April of 2015,[54] and the preliminary investigation turned into the ICC's formal 2021 investigation into war crimes and genocide in Palestine.[55]

At the International Court of Justice[edit | edit source]

The International Court of Justice, also known as the World Court, is the judiciary component of the United Nations and was set up as a judicial venue where legal disputes between countries could be officially adjudicated. Article IX of the Genocide Convention officially designates the ICJ as the arbiter for disputes "relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts [defined in the GC] shall be submitted to the International Court of Justice at the request of any of the parties to the dispute."

Referring genocides to the ICJ[edit | edit source]

While genocide cases have been tried in the ICJ before, it was not until 2019 when The Gambia – with support from the Organization of Islamic Cooperation (OIC) – petitioned the Court to investigate the ethnic cleansing and genocide of the Rohingya Muslims at the hands of the Burmese government that the right of a completely disinterested member nation to trigger the Genocide Convention against another member state as stipulated under Article IX was actually tested or adjudicated.[56][57] On July 22, 2022, the ICJ issued its ruling on whether or not The Gambia's case against Myanmar could go forward, overruling the Burmese representatives' multiple objections that included an argument that The Gambia couldn't refer Myanmar for investigation since none of its nationals were affected.[5]

It is important to note that the original signatories to the Genocide Convention were afforded the opportunity to ratify the convention "with reservations" — allowing states to effectively "opt-out" of certain clauses. With regards to the right of the ICJ to investigate charges of genocide and other war crimes, only reservations to Article IX are relevant;[58] as of November 2023, there are 16 countries with outstanding reservations to this article which gives the ICJ the role of ultimate arbiter in disputes over these cases, such as the question of whether or not a genocide is being committed. While many countries also have recorded objections to these reservations (stipulating that they refuse to acknowledge the reservation/opt-out), the list of countries with reservations on the record to Article IX are as follows: Algeria, Argentina, Bahrain, Bangladesh, China, India, Malaysia, Morocco, Philippines, Rwanda, Singapore, Spain, United States, Venezuela, Vietnam, and Yemen.[59]

The ICJ is decides strictly those disputes that are between nations; it does not prosecute individuals. As the Genocide Convention is a treating binding all its parties to prevent and prosecute genocide, one country stipulating that another is engaging in genocide is sufficient grounds for the ICJ to open a preliminary investigation into the matter. Following a valid petition from a member state, the ICJ immediately begins a preliminary investigation to determine whether or not war crimes or actions with the potential of turning into a genocide are taking place, under its mandate to prevent genocides. If the Court determines that such is indeed the case, it issues legally binding decisions the country is required to follow[60][61] that require the country in question to take immediate and definitive measures to prevent or halt a genocide and preserve all evidence of any alleged crimes outlawed under the Genocide Convention.[62]

ICJ rulings and enforcement[edit | edit source]

The findings of the preliminary investigation are expedited (in comparison to the full ruling which would be years in coming)[62] and concerned primarily with preventing further war crimes or acts of genocide; at this stage the Court does not issue an opinion on whether or not the state in question has violated the provisions of the Genocide Convention. In the case of The Gambia v. Myanmar, the ICJ ordered Myanmar to prevent all crimes defined in the GC, ensure its military does not commit genocide, preserve evidence related to the charges of genocide, and issue a report to the ICJ within four months and then every six months thereafter detailing the actions it is taking to prevent continued violations of the Genocide Convention.[62] These preliminary findings do not have an impact on the final determination of whether or not the country in question violated the convention.

While the ICJ is purely a judicial organ of the United Nations and does not have any executive capabilities for enforcing its decisions, the ICJ's provisional measures are sent to the United Nations Security Council with the intent of pressuring the council to take concrete action in the matter, ranging from passing UNSC resolutions directing the offending state to take specific actions to end the violations, repeal discriminatory laws, and ban practices that limit the freedom or impair the health, safety, and well-being of the persecuted group.[62] However, as is the case with many UNSC matters, resolutions put forward in the UNSC are often subject to the whims of the P5 – its five permanent member nations with full veto rights – who often disagree on geopolitical matters. In the case of Myanmar's war crimes, the refusal of Russia and China to allow the UNSC to take action have been an impediment to more decisive measures being taken in response to the ICJ's findings.[62]

In the case of a stalemate in the UNSC, mainly symbolic measures remain available for further action, primarily for the purposes of pressuring both the UNSC into action and to provide cover and grounds for other member states to take individual policy measures such as arms embargo, economic sanctions, or other such punitive measures — measures that the UNSC can actually impose on all UN member states in an attempt to coerce the transgressing state into compliance with the Genocide Convention, under articles 39 and 41 of the UN Charter.[63] The UN Secretary General is also authorized under Article 99 in Chapter XV of the UN Charter to bring the matter repeatedly to the UNSC,[64] while the UN Human Rights Council and the UN General Assembly would have official ground for passing resolutions calling on the nation in question to comply with the ICJ's demand.

It's important to note that the UN Secretary General is already generally empowered to bring matters to the attention of the UNSC, with or without an ICJ ruling; for example and in the case of Palestine, UN Secretary General António Guterres has addressed the UNSC regarding the plight of the Palestinian people and especially the dire situation in Gaza multiple times, most recently in the context of the 2023 Israel war on Gaza.[65][66]

As an example of altogether bypassing the ICJ referral and preliminary ruling route, on December 6, 2023, UN Secretary General António Guterres specifically invoked Article 99 of the UN Charter (his first time invoking Article 99),[67] in an effort to unilaterally bring the matter of the slaughter of over 15,000 innocents in Gaza, the destruction of over half of all homes there, the displacement of over 80% of its population, and their lack of access to refuge, shelter, healthcare, and other resources:[68][69]

Amid constant bombardment by the Israel Defense Forces, and without shelter or the essentials to survive, I expect public order to completely break down soon due to the desperate conditions, rendering even limited humanitarian assistance impossible. An even worse situation could unfold, including epidemic diseases and increased pressure for mass displacement into neighbouring countries [..] At least 130 UNRWA colleagues have been killed, many with their families. [..] The international community has a responsibility to use all its influence to prevent further escalation and end this crisis. I urge the members of the Security Council to press to avert a humanitarian catastrophe. I reiterate my appeal for a humanitarian ceasefire to be declared. This is urgent. The civilian population must be spared from greater harm.

— António Guterres, U.N. Secretary General

As of December 30, 2023, Guterres' referral of the matter to the UNSC has not brought about any material change with regards to the manner in which Israel is conducting itself in Gaza, with Netanyahu even vowing to further "deepen" or "intensify" the attack on Gaza,[70] even after both the invocation of Article 99 and a separate UNSC resolution calling for more humanitarian aid was finally successfully passed without a US veto.[71] Ultimately, the ICJ can only recommend that the UNSC pass resolutions that would isolate, weaken, or pressure transgressor states into changing their course of action and is powerless if geopolitical or interpersonal interests among the P5 win out over getting such a resolution passed.

It is, however, important to stress that in addition to the political actions that an injunctive ruling is intended to unlock and in light of the fact that the UN Secretary General may bring (and indeed, has already brought) matters of genocide, crimes against humanity, or other war crimes to the attention of the UNSC without an ICJ ruling, it is necessary not to discount other, non-quantifiable outcomes of an ICJ finding of genocide (or a preliminary finding of even the potential for genocide) that include the moral and probative value of such an official declaration of war crimes or genocide from a neutral adjudicator like the World Court: even in the absence of UNSC-enforced diplomatic, military, or economic sanctions or other punitive measures, such a finding would, at the very least, prevent the aggressor from being able to credibly continue to deny its role in war crimes or an ongoing genocide.[57]

If the preliminary findings warranted, the ICJ would then continue to investigate and deliberate over the question of whether or not the subject of its investigation additionally broke the terms of Geneva Convention, in which case other punitive or reparatory measures would be called for.[57]

2023 Israel/Palestine Investigation[edit | edit source]

In the final days of 2023, South Africa officially filed proceedings against Israel with the International Court of Justice, alleging that Israel's brutal conduct in the 2023 Israel war on Gaza included several war crimes and was part of a genocide effort, in contravention of the Genocide Convention (to which both Israel and South Africa are signatories).[72]

According to the application, “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” 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”.

The South African application further states that “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 that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.”[73]

At the state level (universal jurisdiction)[edit | edit source]

A number of parties to the Genocide Convention have, in addition to agreeing to the Genocide Convention at the state level, also fully or partially codified laws against war crimes and genocide into their own criminal justice system.

As an example, Austrian law makes carrying out acts of genocide punishable by imprisonment for life, and punishes conspiring to commit genocide with imprisonment anywhere from one to ten years.[74] In this context, the Austrian law would generally apply in cases where Austrian law has jurisdiction (e.g. a crime committed on Austrian territory or an extra-territorial crime committed by an Austrian national outside of Austria). Other states, however, have adopted legal language that also encompasses actions taken outside of their territory or by non-nationals, giving them the right to arrest, try, and subsequently punish individuals that have taken part in gross crimes against humanity on a worldwide basis, a concept known as "universal jurisdiction".

Countries like the United States and Israel have been extremely critical of the concept of universal jurisdiction and have pressured other countries into changing their laws — while not coincidentally being home to a number of former officials wanted for war crimes investigations by quite a few countries around the world, including Henry Kissinger, Ariel Sharon, and Ehud Barak.[75]

Argentina[edit | edit source]

While many previous Argentine governments have fought against universal jurisdiction in cases of war crimes and genocide (in the context of foreign governments like Spain attempting to extradite Argentinian military officials),[76][77] the 1994 Argentine constitution recognizes its universal jurisdiction to prosecute and punish crimes against humanity, genocide, and war crimes. In 2007 Argentina legislated Law 26.200 which incorporated both the Geneva Convention and the Rome Statute into law with no statute of limitations, covering these and other ICC violations.[78]

In 2021, a UK human rights group Burmese Rohingya Organisation (BROUK), representing six displaced Rohingya Muslim women who testified remotely from Bangladesh, successfully petitioned an Argentine court to open an investigation into the allegations of war crimes and genocide carried out by the Burmese army in their ethnic cleansing of the Rohingya people.[79] Argentine courts also previously took up other war crimes cases under the principle of universal jurisdiction in the past, including the case of crimes committed by ex-dictator Francisco Franco in Spain and those by the Falun Gong movement in China.[79]

While the prior Argentine government has been no friend to fascist regimes, in November 2023 right-wing politician and self-declared "Israel fanatic" Javier Gerardo Milei won Argentina's most recent presidential election and has already pledged his staunch support for Netanyahu's approach in the 2023 Israel war on Gaza, promised to move the Argentine embassy to Jerusalem, and has scheduled a trip to Israel before he even takes office in December.[80]

Belgium[edit | edit source]

In 1993, Belgium became the first state to adopt a law with "universal jurisdiction" for crimes of genocide, giving it the right to charge, prosecute, and punish anyone, anywhere for committing acts of genocide. This law was repealed ten years later in 2003, primarily due to pressure from the United States, with, among other things, US Secretary of Defense Donald Rumsfeld threatening to remove NATO headquarters from Brussels if the law was not rescinded. With the replacement law, Belgium now only has jurisdiction to prosecute crimes committed on Belgian soil, by Belgian nationals, or against Belgian nationals.[81]

Under the now-repealed Belgian "universal jurisdiction" law, charges were filed in cases pertaining to the Rwandan Genocide, the killing of two Belgian priests in Guatemala, [note 2] Hissène Habré in Chad, and Israeli Prime Minister Ariel Sharon for his role in the Sabra and Shatilla massacre.[81] While a number of countries recognize(d) universal jurisdiction for war crimes and genocide, Belgium was one of the few willing to use it to actively prosecute war criminals regardless of political consideration, at least for some time.[82]

In 2001, 23 survivors of the Sabra and Shatilla massacre brought charges of war crimes and genocide against Israeli Prime Minister Ariel Sharon, along with other individuals, for his role in the killings, [83] claiming "all the constituent elements of the crime of genocide, as defined in the 1948 Convention and as reproduced in article 6 of the ICC Statute and in article 1§1 of the law of 16 June 1993, are present".[84] However the Belgian Court of Cassation (the supreme court of Belgium), ruled on February 12, 2003 that under customary international law (laws that de defacto apply internationally), acting heads of state cannot be brought before a criminal tribunal by another country.[85][86] This ruling agreed with a decision made a year earlier by the International Court of Justice in the matter of Congo v. Belgium, another case where charges of genocide were brought under Belgium's universal jurisdiction law.[87] The ICJ did find, however, that even leaders of state could have genocide charges leveled against them, but in the context of an international (rather than foreign national) criminal tribune (such as at the ICC).

Canada[edit | edit source]

As in Belgium and many other countries, Canadian law permits criminal charges (generally and in cases of war crimes or genocide) to be brought against individuals that are nationals of Canada, employed by Canadian nationals, committed a crime against a Canadian national or a national of a country Canada is allied with, or if the individual subsequently sets foot on Canadian soil.[88]

In November 2023, a Canadian human rights attorney announced his intention to file charges against Canadian Prime Minister Justin Trudeau, alleging that his administration's support for Israel's slaughter in Gaza during the 2023 Israel War on Gaza were in violation of the war crimes provisions codified into Canadian law pursuant to the Rome Statute.[89][90]

Denmark[edit | edit source]

In 2001, Amnesty International and Danish MP Soren Sondergaard called on the Danish government to arrest Israel's former head of Shin Bet (Israel's General Security Service) and newly appointed ambassador to Denmark Carmi Gillon on charges of torture and crimes against humanity, including the shaking to death of Palestinian prisoner Abd Al-Samad Harizat in 1995. Gillon also stated in an interview with the Danish Jyllands Posten that he had been involved in over 100 cases of torture of Palestinian prisoners and made statements seen as advocating for the reintroduction of such torture policies. According to Amnesty, in May 1997 the UN found that the interrogation methods Israel does not deny employing would "constitute torture as defined in article 1 of the [Geneva Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]."[91][92][93] Denmark resisted the calls for his arrest, citing diplomatic immunity, but Amnesty quoted the Rome Statute (to which Denmark is a signatory), Article 27, Section 1:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute..."

Finland[edit | edit source]

Finland has also incorporated laws against war crimes and genocide (or conspiring to commit genocide) into its criminal code, and considers violations of such to fall under its universal jurisdiction (prosecutable when committed by anyone, anywhere) – but with the provision that an investigation into these crimes cannot be initiated without a direct order from the country's top Prosecutor General,[94] making it difficult for private parties to obtain an arrest warrant in most cases. A Rwandan refugee was prosecuted and jailed for his complicity in the Rwandan Genocide under this provision in 2010.[95]

Germany[edit | edit source]

Since 2002, German prosecutors can similarly exercise universal jurisdiction under the Völkerstrafgesetzbuch (Code of Crimes against International Law, abbr. VStGB) into cases of genocide (§ 6 VStGB), crimes against humanity (§ 7 VStGB), and war crimes (§§ 8-12 VStGB).[96] While these laws had previously been used to successfully prosecute individuals for their role in the Bosnian Genocide in cases where the defendants had specific connections to Germany,[97][98][99] the universal jurisdiction law enabled the Thai human rights group Fortify Rights to petition the federal government to investigate Myanmar military officials for genocide and other war crimes for the ethnic cleaning of the Muslim Rohingya between 2016 and 2017.[100] As of 2023, there were over 100 such cases being investigated under German's universal jurisdiction law.[100]

Israel[edit | edit source]

Despite being one of the strongest critics of other countries' universal jurisdiction laws for cases of war crimes or genocide and even formally bringing its complaints about such laws to the UN,[101] Israel itself has laws against war crimes and genocide on the books and recognizes its right under universal jurisdiction to try foreigners for committing such war crimes anywhere in the world without a statue of limitations and considers anyone committing a crime against Jews anywhere in the world to have broken Israel law and prosecutable under Israeli jurisdiction.[102] This right was exercised to have Adolf Eichmann "extradited" to Israel (he was arrested in Argentina in a secret Mossad operation), where he was tried for war crimes and genocide, found guilty, and hanged June 1, 1962.[103]

Spain[edit | edit source]

In addition to provisions adopted in the Spanish Código Penal (Penal Code) outlawing war crimes including genocide,[104][105] from 2005 to 2009, the Spanish legal system is also empowered to investigate and prosecute such acts when committed by foreigners on foreign soil under universal jurisdiction.[106] In June 2003, this provision was used to bring charges of genocide and terrorism against former Argentine naval officer Ricardo Miguel Cavallo, for which he was successfully extradited from Mexico.[107][108] However in 2009, Spain passed a new law restricting this universal jurisdiction only to cases "involving Spanish victims, suspects who are in Spain, or some other obvious link with Spain".

The broad repeal of Spain's universal jurisdiction for crimes of war and genocide came in response to an attempt by pro-Palestinian organizations to charge Israeli officials with war crimes as a result of Israel's 2002 assassination of Al-Qassam Brigades commander Salah Shehadeh. The charges were filed against former IDF chief of General Staff Lieutenant General Dan Halutz, Israel's Minister of Industry, Trade and Labor Binyamin Ben-Eliezer, Israel's Strategic Affairs Minister Moshe Ya’alon, Israel's former National Security Council head Giora Eiland, former public security minister Avi Dichter, former OC Southern Command Major General Doron Almog and Ministry of Defense official Brigadier General Michael Herzog. After Israeli government pressure, the law was repealed in 2009 and put to rest after the repeal was upheld by the Spanish Supreme Court in 2010.[109] This has prevented Spain from filing genocide and war crime charges against other countries too, not only Israel.[110]

United Kingdom[edit | edit source]

The United Kingdom is a signatory to the ICC's Rome Statute and incorporated laws against genocide and other war crimes into its legal system and per UK law, the most severe of these violations come under the fold of universal jurisdiction where offenders could be charged and arrested regardless of their nationality or where the crimes took place. There are handbrakes on the UK version of universal jurisdiction, namely, the consent of the UK attorney general is required before any such criminal proceedings can take place. Magistrate consent is required to begin investigations into war crimes or acts of genocide, but until 2011 it was possible to obtain arrest warrant before getting consent from the Crown.[111]

The UK's universal jurisdiction over war crimes was used several times by various groups to obtain arrest warrants for various Israeli officials regarding war crimes committed in occupied Palestine over the years, before it was significantly handicapped in 2011 in response to Israeli pressure.

2005 warrant for the arrest of Doron Almog[edit | edit source]

In 2005, lawyers obtained an arrest warrant for former IDF general Doron Almog for the destruction of 59 civilian residences in Gaza in advance of his visit to the UK. He was secretly informed of his pending arrest and he did not disembark from the El Al plane (British police were quoted saying El Al had refused them permission to board and they feared getting into a gunfight with Israeli air marshals routinely present on El Al flights.[112] Almog later thanked El Al for being "loyal" and helping him avoid arrest).[113] [114] Israel raised a "diplomatic storm" over the incident; Israeli Foreign Minister Silvan Shalon called the close call an "outrage", leading UK Foreign Secretary Jack Straw to apologize. John O' Connor, former head of Scotland Yard's flying squad, later signaled his support for the arrest warrant, saying "All they needed to do was to stop the plane from taking off and negotiate through the Foreign Office," continuing that he felt the arrest had been "written off", and adding "British justice is in the dock."[112]

2009 warrant for the arrest of Ehud Barak[edit | edit source]

In September 2009, lawyers for the UK human rights group Palestine Solidarity Campaign obtained an arrest warrant from a district judge for Ehud Barak, then the Israeli Defense Minister, for war crimes committed in Gaza in 2008. While normally no hearings would then take place until the subject of the warrant has been arrested, in this case the UK Foreign Office was informed and a hearing was held during which Queen's Counsel Clare Montgomery made the case for his arrest. District Judge Daphne Wickham agreed that a strong enough case was made for the charges and arrest warrant, but held the view that Barak had diplomatic immunity, saying "I am satisfied that under customary international law, Mr Barak has immunity from prosecution as he would not be able to perform his functions efficiently if he were the subject of criminal proceedings in this jurisdiction."[114]

2005 warrant for the arrest of Tzipi Livni[edit | edit source]

Later in 2009, in advance of her visit to the UK that December, an arrest warrant was obtained for Israel's former Foreign Minister Tzipi Livni for her role in the 2008 Israel war on Gaza in which over 1400 civilians were killed. She cancelled her visit in response, claiming it was due to scheduling problems.[115]

2011 universal jurisdiction limitation after Israeli complaints[edit | edit source]

The UK has faced heavy pressure from Israel to put an end to its universal jurisdiction laws. After narrowly avoiding arrest in 2009, Livni told the BBC "What needs to be put on trial here is the abuse of the British legal system. This is not a suit against Tzipi Livni, this is not a lawsuit against Israel. This is a lawsuit against any democracy that fights terror," and added "It's about time to put terrorists on trial and not those who try to stop terror." Israeli Prime Minister Benjamin Netanyahu rebuked the UK ambassador to Israel and called the situation an "absurdity," saying in a statement "We will not accept a situation in which [former Israeli Prime Minister] Ehud Olmert, [Defence Minister] Ehud Barak, and Tzipi Livni will be summoned to the defendants' chair. We will not agree to have Israel Defence Force soldiers, who defended the citizens of Israel bravely and ethically against a cruel and criminal enemy, be recognized as war criminals. We completely reject this absurdity taking place in Britain."[115]

UK Foreign Secretary David Miliband said in response that Israel was a "close friend" of the UK's and that he was eager to "avoid this sort of situation arising again". "Israel is a strategic partner and a close friend of the UK. We are determined to protect and develop these ties. Israeli leaders - like leaders from other countries - must be able to visit and have a proper dialogue with the British government. The procedure by which arrest warrants can be sought and issued without any prior knowledge or advice by a prosecutor is an unusual feature of the system in England and Wales. The government is looking urgently at ways in which the UK system might be changed in order to avoid this sort of situation arising again."[115]

On September 15, 2011, British law was amended to require the consent of the UK's Director of Public Prosecutions before an arrest warrant could be issued in cases of universal jurisdiction brought forward by individuals and private parties.[116]

Avenue considerations[edit | edit source]

The above section details the various methods by which the Genocide Convention may be invoked or triggered in different settings. Given the number of treaties and laws proscribing war crimes and acts of genocide, there are quite a number of different venues where charges of genocide (or war crimes in general) may be referred for investigation, but there are different considerations that might affect or impair the ability to practically do so.

  • The ICC is resource-limited and in practice at the mercy of larger or richer countries to contribute the necessary manpower and funding in order to pursue its investigations.[117] This same dependency has made it difficult for the ICC to actually investigate cases that go against the interests of some of the more powerful nations.[118]
  • Despite claims that the ICC is itself an impartial adjudicator or uninterested in pursuing claims involving victims from the Global South or crimes perpetrated by Western governments, the ICC has, in fact, launched investigations into crimes committed by the United States in Afghanistan,[118][119] Israel in Palestine,[23], and the Burmese against the Rohingya[120] — the actual problem is active interference by countries like the United States to protect their own interests[121] or those of Israel.[30]
  • Unlike the ICC, the ICJ is fully self-sufficient and one of the largest organs of the United Nations. It has the capacity to (and has) run its own investigations without relying on funding or personnel from member nations. However, as with the ICC, it does not have any executive capacity to act on or enforce its own findings — its judgements, in addition to being binding on all UN member nations who are expected to comply, are referred to the UN Security Council for enforcement. For provisional measures adjudicated by the ICJ that don't have unanimous UNSC buy-in, such as in the case of Myanmar, enforcement becomes a matter of pontification and political pressure rather than actual strong-arming backed by the full weight of the United Nations. Like the ICC, the ICJ has also ruled consistently in an independent fashion, both in cases where the cases were brought to it by a coalition of western governments and when cases were brought by lone nations on behalf of members of the global south.
  • In the past, there was significant opportunity for human rights groups to pursue justice on behalf of oppressed groups or nations in the context of universal jurisdiction in national courts. As covered above, certain courts like those in Belgium, Spain, and the UK offered good opportunity and showed a fair amount of willingness to engage in the investigation into potential crimes committed extra-territorially that did not involve their own nationals, although in the majority of those cases, external pressure led to the courts ruling against pursuing those cases for various reasons. Ultimately, the pressure from governments like those of the United States and Israel resulted in the majority of these national options being shut down or severely gate-kept to the point of no longer being valid options for the pursuit of international justice.
  • While any state party to the Rome Statute may refer cases to the ICC for investigation (even if the aggressor is not party to the ICC), there are still diplomatic considerations at play. In the past, the United States has sanctioned The Hague itself for steps taken into investigating crimes committed in Afghanistan and Palestine (by the US and by Israel).[122] But the strong-arming did not end there, and the US also sanctioned Palestine by closing its diplomatic mission to the US as punishment for requesting an ICC investigation into Israel.[30]
  • Similar pressures were employed by the United States to prevent independent, national investigations by Belgium and Spain into Israeli crimes in the Occupied Palestinian Territories.
  • Fear of the same sort of reprisal is a very real factor that comes into consideration when Genocide Convention member states consider referring crimes to the ICJ for investigation. For example, the United States has denied pressuring the Palestinian government or its president, Mahmoud Abbas, to prevent it from activating the Genocide Convention in the ICJ,[123] the US has no need to re-iterate a threat that they've already carried out which Palestine and other countries certainly need no reminder of.[23]
  • While The Gambia, one of the smallest states in the world, was able to successfully bring charges against Burma to the ICJ, it is important to remember that this wasn't a case that risked running afoul of Western interests.[note 3] At the same time, given that the OIC (Organization of Islamic Cooperation) backed The Gambia's petition to the ICJ[125] but have made no mention of the Genocide Convention when it comes to Palestine and the wholesale massacre of thousands of innocents in Gaza during the 2023 Israel war on Gaza, it is difficult not to see the fear of reprisal behind the sudden silence.

Notes[edit | edit source]

  1. ↑ As of August 23, 2014, Palestine Islamic Jihad had not signed the document in question and in 2021, Ha'aretz claimed that PIJ never signed;[48] however a 2015 Ha'aretz article quotes a Palestinian source as saying "leaders of Hamas and Islamic Jihad had declared they were willing to risk being tried at the ICC as long as it discusses Palestinian allegations about Israeli war crimes," before adding "Erekat had Palestinian leaders sign a declaration stating they agreed to turn to the ICC [..] The Islamic organizations also signed."[49] Furthermore, Abbas had indicated that he would not proceed with an ICC application without all groups signing.[50]
  2. ↑ Given that the victims were Belgian nationals, this charge could still be prosecuted under the new law.
  3. ↑ The Gambia's petition to the ICJ was later joined by Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom.[124]

References[edit | edit source]

  1. ↑ Convention on the Prevention and Punishment of the Crime of Genocide art. 2, 78 U.N.T.S. 277, 9 December 1948. Online copy available.
  2. ↑ "Convention on the Prevention and Punishment of the Crime of Genocide (Article 2)" (PDF). 9 December 1948. Retrieved 2023-12-04.
  3. ↑ "Convention on the Prevention and Punishment of the Crime of Genocide" (PDF). United Nations Audiovisual Library of International Law. Retrieved 2023-11-24.
  4. ↑ "United Nations Office on Genocide Prevention and the Responsibility to Protect". United Nations. Retrieved 2023-11-24. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.
  5. ↑ 5.0 5.1 "World Court Rejects Myanmar Objections to Genocide Case". The Hague: Human Rights Watch. July 22, 2022. Retrieved November 28, 2023.
  6. ↑ Priya Pillai (November 6, 2019). "The International Court of Justice and the Rohingya: The Long Road Ahead for Accountability". Opinio Juris. Retrieved November 28, 2023.
  7. ↑ 7.0 7.1 "Gaza/Palestine: States have a Duty to Prevent Genocide". International Commission of Jurists. 2023-11-17. Retrieved 2023-11-28. "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."
  8. ↑ 8.0 8.1 Rory Carrol (31 Mar 2004). "US chose to ignore Rwandan genocide". The Guardian. Archived from the original on January 27, 2022.
  9. ↑ Dana Hughes (February 28, 2014). "Bill Clinton Regrets Rwanda Now (Not So Much In 1994)". ABC News. Archived from the original on May 16, 2021.
  10. ↑ Antony J. Blinken (2021-03-03). "The United States Opposes the ICC Investigation into the Palestinian Situation" (Press release). United States Department of State. Retrieved 2023-11-28.
  11. ↑ 11.0 11.1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), p. 12 (International Court of Justice 23 January 2020).Text
  12. ↑ 12.0 12.1 12.2 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment (International Court of Justice 26 February 2007).Text
  13. ↑ We Charge Genocide: The Historic Petition to the United Nations for Relief from a Crime of the United States Government Against the Negro People (PDF). Civil Rights Congress. 1952.
  14. ↑ 14.0 14.1 14.2 John Docker, "Raphaël Lemkin, creator of the concept of genocide: a world history perspective", Humanities Research 16(2), 2010; accessed via ProQuest.
  15. ↑ James L. Hicks, "Patterson Charges U.S. Stole Passport", Baltimore Afro-American, 2 February 1951.
  16. ↑ Martin, Charles (1997). "Internationalizing 'The American Dilemma'— The Civil Rights Congress and the 1951 Genocide Petition to the United Nations". Journal of American Ethnic History. 16 (4): 35-61.
  17. ↑ "UN May Not Accept CRC Petition", Atlanta Daily World, 18 January 1952; accessed via ProQuest.
  18. ↑ Loeffler, James (2017). "Becoming Cleopatra: the forgotten Zionism of Raphael Lemkin". Journal of Genocide Research. Routledge. 19 (3): 340–360. doi:10.1080/14623528.2017.1349645. Retrieved 2023-11-27.
  19. ↑ "UN Asked to Act Against Genocide in the United States". Baltimore Afro-American. 22 December 1951.
  20. ↑ "What is the International Criminal Court (ICC) and what is its relationship with the UN?". Dag Hammarsköld Library. United Nations. Retrieved 27 November 2023.
  21. ↑ "The Rome Statute" (PDF). International Criminal Court. Archived (PDF) from the original on 2023-04-09. Retrieved 2023-11-27.
  22. ↑ "The UN Security Council". Council on Foreign Relations. 2023-02-28. Retrieved 27 November 2023. United States, China, France, Russia, and the United Kingdom
  23. ↑ 23.0 23.1 23.2 23.3 "International Criminal Court prosecutor calls for end to violence in Gaza". Reuters. 2018-04-08. Retrieved 27 November 2023.
  24. ↑ "The States Parties to the Rome Statute". International Criminal Court. Retrieved 2023-11-27. 123 countries are States Parties to the Rome Statute of the International Criminal Court
  25. ↑ Claire Klobucista; Mariel Ferragamo (2023-07-24). "The Role of the International Criminal Court". Council on Foreign Relations. Retrieved 27 November 2023. China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey. Several dozen others signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, Syria, and the United States.
  26. ↑ 26.0 26.1 26.2 "How the Court works". International Criminal Court. Retrieved 27 November 2023.
  27. ↑ "U.S.: 'Hague Invasion Act' Becomes Law". Human Rights Watch. 2002-08-03. Retrieved 2022-10-13.
  28. ↑ "John Sutherland: Who are America's real enemies?". The Guardian. 2002-07-08. Retrieved 2022-10-13.
  29. ↑ "State of Palestine". International Criminal Court. Retrieved 2023-11-27.
  30. ↑ 30.0 30.1 30.2 30.3 Owen Bowcott; Oliver Holmes; Erin Durkin (2018-09-19). "John Bolton threatens war crimes court with sanctions in virulent attack". The Guardian. Retrieved 2023-11-27. "We will not allow the ICC or any other organisation to constrain Israel's right to self-defence," Bolton said on Monday.
  31. ↑ Bryant, Lisa (June 15, 2021). "Outgoing Prosecutor Praised for Expanding ICC's Reach". Voice of America. Retrieved December 4, 2023.
  32. ↑ 32.0 32.1 Rios, Michael (November 17, 2023). "Five countries ask International Criminal Court to investigate the situation in Palestinian territories". CNN. Retrieved December 4, 2023.
  33. ↑ "Five nations seek war crimes probe in Palestinian territories". Reuters. November 17, 2023. Retrieved December 4, 2023.
  34. ↑ Antony Deutsch; Stephanie van den Berg (October 13, 2023). "Exclusive: Hamas attack, Israeli response fall under ICC jurisdiction, prosecutor says". Reuters. Retrieved December 4, 2023.
  35. ↑ "Visiting Israel and Ramallah, ICC chief vows to intensify probe against Hamas, IDF". Times of Israel. December 4, 2023. Retrieved December 4, 2023.
  36. ↑ "UK's Karim Khan elected next ICC prosecutor, will replace controversial Bensouda". Times of Israel. 2021-02-13. Retrieved 4 December 2023.
  37. ↑ "Declaration by the Palestinian National Authority Accepting the Jurisdiction of the International Criminal Court" (PDF). International Criminal Court. 2009-01-21. Retrieved 2023-12-03.
  38. ↑ "Prosecutor's Update on the situation in Palestine" (PDF). International Criminal Court. 2012-04-03. Retrieved 2023-12-03.
  39. ↑ "Palestine: What is in a name (change)?". Aljazeera Inside Story. Aljazeera. 8 January 2013. Archived from the original on 9 January 2013. Retrieved 8 June 2014.
  40. ↑ "Q&A: Palestinians' upgraded UN status". BBC News. 2012-11-30. Retrieved 2023-12-03.
  41. ↑ Lauria, Joe (2012-11-14). "World News: Palestinians Set U.N. Vote, Defying U.S., Israel". Wall Street Journal. p. 13. Retrieved 2023-12-03 – via ProQuest.
  42. ↑ Office of the Prosecutor of the ICC (2013-11-25). "Report on Preliminary Examination Activities 2013" (PDF). International Criminal Court. Archived (PDF) from the original on 2014-08-13.
  43. ↑ Fatou Bensouda (2014-07-29). "The truth about the ICC and Gaza". The Guardian. Retrieved 2023-12-03.
  44. ↑ "Is the PA stalling Gaza war crimes probe?". Al Jazeera. 2014-09-12. Retrieved 2014-10-11.
  45. ↑ 45.0 45.1 David Hearst (2015-02-15). "Exclusive: Hamas pushes Abbas to join ICC". Middle East Eye. Retrieved 6 December 2023. A tape in which Erekat criticised Abbas's refusal to join the ICC was leaked recently. In it, Erekat is alleged to have criticised Abbas for stalling on the question of the ICC.
  46. ↑ "Hamas urges Abbas to sign ICC Statute". aa.com.tr. Andalou. 2014-06-17. Retrieved 6 December 2023.
  47. ↑ "Hamas signs Palestinian application for ICC membership". The Straits Times. 2014-07-23. Retrieved 6 December 2023.
  48. ↑ Hass, Amira (2021-03-06). "ICC decision makes the Israeli-Palestinian 1967 lines relevant once again". Haaretz. Retrieved 6 December 2023. Abbas also had a declaration initiated by Saeb Erekat, which the various Palestinian organizations signed, saying they supported joining the ICC and were willing to bear the consequences; that is, that the members of these organizations could be summoned, interrogated and even arrested on suspicion of committing war crimes. Only Islamic Jihad didn't sign.
  49. ↑ Hass, Amira (January 1, 2015). "Abbas asks ICC to probe 'Israeli war crimes' since June '14, Palestinian source says". Haaretz. Retrieved December 6, 2023. The source said leaders of Hamas and Islamic Jihad had declared they were willing to risk being tried at the ICC as long as it discusses Palestinian allegations about Israeli war crimes. During the Gaza war over the summer, Erekat had Palestinian leaders sign a declaration stating they agreed to turn to the ICC, even though Israel might seek the prosecution of Palestinians under war-crimes charges. The Islamic organizations also signed.
  50. ↑ Nidal Al-Mughrabi (2014-07-23). "Hamas backs Palestinian push for ICC Gaza war crimes probe". Reuters. Retrieved 6 December 2023. President Mahmoud Abbas says all factions must endorse before he proceeds with the ICC push.
  51. ↑ "Declaration accepting the jurisdiction of the International Criminal Court" (PDF). International Criminal Court. 2014-12-31. Retrieved 2023-12-03.
  52. ↑ Ravid, Barak (January 2, 2015). "Palestinians submit request to join International Criminal Court". Haaretz.com. Retrieved December 6, 2023. Palestinian Ambassador to the UN Riyad Mansour submitted on Friday evening to the UN offices in New York the request to join 22 international treaties, including the Rome Statute of the International Criminal Court at the Hague.
  53. ↑ The Prosecutor of the International Criminal Court (2015-01-16). "The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine" (Press release). International Criminal Court. Retrieved 6 December 2023.
  54. ↑ "Palestinian Authority becomes official member of International Criminal Court". Haaretz. April 1, 2015. Retrieved December 6, 2023.
  55. ↑ Peter Beaumont (March 3, 2021). "ICC opens investigation into war crimes in Palestinian territories". The Guardian. Retrieved December 6, 2023.
  56. ↑ Giada Corsoni; Gregory Stanton (2022-02-19). "ICJ Will Decide If Genocide Convention Is Law Of Nations". Genocide Watch. Retrieved 28 November 2023.
  57. ↑ 57.0 57.1 57.2 Rizwanul Islam (November 19, 2019). "Gambia's Genocide Case Against Myanmar: A Legal Review". The Diplomat. Retrieved November 28, 2023.
  58. ↑ "Developments in Gambia's Case Against Myanmar at the International Court of Justice". Human Rights Watch. February 14, 2022. Retrieved December 4, 2023.
  59. ↑ "United Nations Treaty Collection | Chapter IV: Human Rights". treaties.un.org. United Nations. Archived from the original on 2023-11-28. Retrieved 2023-11-28.
  60. ↑ LaGrand (Germany v. United States of America), Reports of Judgements, Advisory Opinions, and Orders p. 466 (International Court of Justice 2001).Text
  61. ↑ Pomson, Ori (March 17, 2022). "The ICJ's Provisional Measures Order: Unprecedented - Lieber Institute West Point". West Point Lieber Institute. Retrieved November 28, 2023.
  62. ↑ 62.0 62.1 62.2 62.3 62.4 "World Court Rules Against Myanmar on Rohingya". Brussels: Human Rights Watch. January 23, 2020. Retrieved November 28, 2023.
  63. ↑ Ventouratou, Anna (2022). "Litigating Economic Sanctions". The Law & Practice of International Courts and Tribunals. Brill | Nijhoff. 21 (3): 593–640. doi:10.1163/15718034-12341491. Retrieved 2023-11-28. Under Articles 39 and 41 UN Charter, the UN Security Council has the power to mandate UN member States to interrupt, completely or partially, their economic relations with certain States in order to induce compliance by the latter with its decisions under Chapter VII.
  64. ↑ "Chapter XV: Article 99 — Charter of the United Nations — Repertory of Practice of United Nations Organs — Codification Division Publications". legal.un.org. United Nations. Retrieved 28 November 2023.
  65. ↑ "Remarks by António Guterres, Secretary-General, to the Security Council Meeting on the Middle East". The America Times. November 30, 2023. Retrieved December 1, 2023.
  66. ↑ Michelle Nichols (November 29, 2023). "UN chief says Gaza in midst of 'epic humanitarian catastrophe'". Reuters. Retrieved December 1, 2023.
  67. ↑ United Nations [@UN] (December 6, 2023). "For first time ever, @antonioguterres invokes Article 99 of UN Charter, urging Security Council to help avert a humanitarian catastrophe in Gaza" (Tweet). Retrieved 2023-12-06 – via Twitter.
  68. ↑ António Guterres. "The Secretary-General letter to the President of Security Council invoking Article 99 of the United Nations Charter (S/2023/962)" (PDF). Retrieved 2023-12-06.
  69. ↑ "UN chief invokes rare Article 99 over Gaza war". Tehran Times. 6 December 2023. Retrieved 6 December 2023.
  70. ↑ Raffi Berg (2023-12-25). "Israel-Gaza war: Netanyahu vows to intensify campaign". BBC News. Retrieved 30 December 2023.
  71. ↑ "UN Security Council backs ramping up Gaza aid, but no ceasefire". BBC News. 2023-12-22. Retrieved 30 December 2023.
  72. ↑ "The Republic of South Africa institutes proceedings against the State of Israel and requests the Court to indicate provisional measures" (PDF) (Press release). The Hague: International Court of Justice. 2023-12-29. 2023/77. Retrieved 2024-01-01.
  73. ↑ "APPLICATION INSTITUTING PROCEEDINGS" (PDF). The Hague. 2023-12-28. 192-20231228-app-01-00. Retrieved 2024-01-01.
  74. ↑ "Österreichiches Recht: Völkermord § 321" [Austrian Law: Genocide Article 321] (in Deutsch). Prevent Genocide International. Retrieved 30 January 2017.
  75. ↑ "Analysis: New trend toward universal jurisdiction". All Things Considered. National Public Radio. 2001-08-08. Retrieved 2023-11-27 – via ProQuest.
  76. ↑ "RELUCTANT PARTNER: The Argentine Government's Failure to Back Trials of Human Rights Violators". Human Rights Watch. December 2001. Retrieved 2023-11-27.
  77. ↑ "RELUCTANT PARTNER: The Argentine Government's Failure to Back Trials of Human Rights Violators — Chapter VIII. TRANSNATIONAL JUSTICE". Human Rights Watch. December 2001. Retrieved 2023-11-27.
  78. ↑ "Argentina and the Rome Statute". Parliamentarians for Global Action. Archived from the original on 2023-11-27. Retrieved 27 November 2023.
  79. ↑ 79.0 79.1 "Argentina court to investigate Myanmar war crimes against Rohingya Muslims". The Guardian. Agence France-Presse. 2021-11-29. Retrieved 27 November 2023.
  80. ↑ Chambers, Bala (2023-11-23). "'Fanatic of Israel': What drives Javier Milei's obsession with Jewish nation". TRT World. Retrieved 27 November 2023.
  81. ↑ 81.0 81.1 "Belgium: Universal Jurisdiction Law Repealed". Human Rights Watch. 2003-08-01. Retrieved 2023-11-25.
  82. ↑ Hurst, Lynda (2003-06-29). "Belgium reins in war-crime law ; U.S. threats finally sink 'universal jurisdiction' suits Anti-war activists used court to sue American leaders". Toronto Star. pp. F04. Retrieved 2023-11-27 – via ProQuest.
  83. ↑ "The Case Against The Accused". indictsharon.net, the website of the International Campaign for Justice for the Victims of Sabra & Shatila. 2001. Archived from the original on 2 February 2002. ...Ariel Sharon, former Israeli defense minister and Israel's current prime minister, as well as other Israelis and Lebanese with war crimes...
  84. ↑ "The complaint against Ariel Sharon Lodged in Belgium on 18 June 2001" (PDF). indictsharon.net. June 2001. Archived from the original (PDF) on 9 June 2003.
  85. ↑ "Belgian Court of Cassation (English translation of Belgian Supreme Court Decision- unauthorised)" (PDF). indictsharon.net. 12 February 2003. Archived from the original (PDF) on 25 July 2004.
  86. ↑ Chibli Mallat, Michael Verhaeghe, Luc Walleyn and Laurie King-Irani The February 2003 Decision of the Belgian Supreme Court Explained on the website of [indictsharon.net], 19 February 2003
  87. ↑ Osbor, Andrew (14 February 2002). "Sharon cannot be tried in Belgium, says court". Brussels: The Guardian. Archived from the original on 16 January 2014.
  88. ↑ Crimes Against Humanity and War Crimes Act Archived 14 May 2013 at the Wayback Machine, Foreign Affairs and International Trade Canada, gc.ca.
  89. ↑ Lorne Gunter (2023-11-25). "GUNTER: Hamas slaughter warrants Israeli actions". Toronto Sun. Retrieved 2023-11-25. Yavar
  90. ↑ Alan Ibrahim [@Dhambaalka] (November 23, 2023). "A group of people are initiating a criminal lawsuit against the government and any institutions or individuals in #Canada that helped or participated in #Israel's war crimes in #Gaza according to #Canadian and international laws. People should do the same in every country" (Tweet) – via Twitter.
  91. ↑ "Israel/Denmark: Amnesty International Calls On Denmark To Fulfill Its Obligations". Middle East News Online: N/A. 2001-08-14. Retrieved 2023-11-26 – via ProQuest. After the death of a detainee, 'Abd al-Samad Harizat, in April 1995 from a brain haemorrhage as a result of violent shaking, the ministerial committee which oversees the GSS were reportedly divided as to whether to allow an extension of the "exceptional dispensation" granted to the GSS to use "increased physical pressure". The GSS, then headed by [Carmi Gillon], argued strongly that such means were necessary.
  92. ↑ Hockstader, Lee (2001-07-29). "Israeli's Torture Remarks Cause Diplomatic Uproar". The Washington Post. Archived from the original on 2023-11-27. Retrieved 2023-11-26 – via ProQuest.
  93. ↑ "Israel/Denmark: Amnesty International calls on Denmark to fulfill its obligations under the UN Convention against Torture" (Press release). Amnesty International. 2001-07-14. Archived from the original on 2023-11-26. Retrieved 2023-11-26.
  94. ↑ "Criminal Code" (PDF) (in suomi). Ministry of Justice of Finland. Retrieved 2017-03-23.
  95. ↑ "Ruandalaispastorille elinkautinen joukkotuhonnasta" [Rwandan pastor gets life sentence for genocide]. Yle Uutiset (in suomi). 2012-03-30. Archived from the original on 2012-03-31.
  96. ↑ Federal Republic of Germany (2022-10-12). "The scope and application of the principle of universal jurisdiction" (PDF). New York: Permanent Mission of the Federal Republic of Germany to the United Nations. Retrieved 2023-11-25.
  97. ↑ Germany v. Nikola Jorgić (Federal Constitutional Court, Germany, 4th Chamber of the Second Senate 2000-12-12).Text
  98. ↑ Germany v. Novislav Djajic (Court of Appeal of Bavaria, Germany 1997-05-23).Text
  99. ↑ Germany v. Maksim Sokolovic (Federal Constitutional Court, Germany, 4th Chamber of the Second Senate 2001-02-21).Text
  100. ↑ 100.0 100.1 Andrea Maria Pelliconi; Francesca Sironi De Gregorio (2023-03-07). "New universal jurisdiction case filed in Germany for crimes committed in Myanmar before and after the coup: On complementarity, effectiveness, and new hopes for old crimes". EJIL: Talk!. Retrieved 2023-11-25.
  101. ↑ Rachel Oberman (2015-10-20). "The Scope and Application of the Principle of Universal Jurisdiction" (PDF). New York: Permanent Mission of Israel to the United Nations. Retrieved 2023-11-26.
  102. ↑ Izenberg, Dan (2003-02-14). "Israel also claims universal jurisdiction". Jerusalem Post. Retrieved 2023-11-26 – via ProQuest. Shahar told The Jerusalem Post that the types of crimes that Israel has taken the liberty to prosecute on the basis of international agreements include genocide, torture, and apartheid. [..] Israel also passed legislation making it responsible for the protection of every Jew anywhere in the world, whether or not the Jew in question wanted or requested such protection. According to this law, anyone committing a crime against a Jew anywhere in the world breaks Israeli law and is liable to punishment by the Jewish State.
  103. ↑ Liu, Wenjing (2022). "Eichmann in Jerusalem: A Study of the Legitimacy of Jurisdiction Based on Universal Interests". Beijing Law Review. 13 (3): 496–506. doi:10.4236/blr.2022.133031.
  104. ↑ "Artículo §607 del Codigo Penal" [Article §607 of the Penal Code] (in español). Prevent Genocide International. Retrieved 31 January 2017.
  105. ↑ Wilson, Richard (1996). "Spanish Criminal Prosecutions Use International Human Rights Law to Battle Impunity in Chile and Argentina". Ko'aga Roñe'eta. III. derechos.org. Retrieved 31 January 2017.
  106. ↑ "Spain may judge Guatemala abuses". BBC News. 2005-10-05. Archived from the original on 2008-07-24. Retrieved 24 July 2008.
  107. ↑ Daly, Emma (30 June 2003). "Spanish Judge Sends Argentine to Prison on Genocide Charge". New York Times. Retrieved 30 January 2017.
  108. ↑ "Profile: Judge Baltasar Garzon". BBC. 7 April 2010. Retrieved 30 January 2017.
  109. ↑ Dan Izenberg (2010-04-19). "Universal jurisdiction victory in Spain but battle goes on". The Jerusalem Post. Retrieved 2023-11-25.
  110. ↑ "Spanish court shelves Tibet human rights case against China". Madrid: phayul.com. Deutsche Presse-Agentur. 26 February 2010. Archived from the original on 8 September 2012. Retrieved 6 September 2010.
  111. ↑ Arabella Thorp (2010-03-25). "Parliamentary Standard Note SN/IA/5422" (PDF). UK House of Commons Library. Retrieved 2023-11-26.
  112. ↑ 112.0 112.1 Dominic Casciani (2008-02-19). "Police feared 'airport stand-off'". BBC News. Retrieved 26 November 2023.
  113. ↑ Vikram Dodd; Conal Urquhart (2005-09-13). "Investigation urged after Israeli officer avoids arrest". the Guardian. Nes Ziona, Israel. Retrieved 2023-11-26.
  114. ↑ 114.0 114.1 Rozenberg, Joshua (December 2009). "Modern Lawfare". Standpoint Magazine. Archived from the original on 2015-04-14.
  115. ↑ 115.0 115.1 115.2 "UK ponders law change after Tzipi Livni arrest warrant". BBC News. 2009-12-15. Retrieved 26 November 2023.
  116. ↑ Kenneth Clarke, KC. "Universal Jurisdiction" (Press release). UK Ministry of Justice. Retrieved 2023-11-26. New changes to the law in the Police Reform and Social Responsibility Act will not affect this right and those accused of these grave crimes will still be brought to justice if there is sufficient evidence against them. However, as of today, the consent of the Director of Public Prosecutions will now be required before an arrest warrant is issued in universal jurisdiction cases brought by individuals.
  117. ↑ Aakash Chandran; Jennifer Keene-McCann; Emma Palmer (April 5, 2023). "What of the Rohingya? The ICC, Ukraine, and limits of "international" justice". The Interpreter. Lowy Institute. Retrieved November 28, 2023.
  118. ↑ 118.0 118.1 Karim A. A. Khan (September 27, 2021). "Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in Afghanistan" (Press release). International Criminal Court. Retrieved 28 November 2023.
  119. ↑ "ICC authorises investigation into alleged Afghanistan war crimes". Al Jazeera English. 2020-03-05. Archived from the original on 2020-03-05. Retrieved 2020-03-05.
  120. ↑ Najmus Sakib (2023-07-07). "Lack of access to Myanmar impedes investigation, says ICC prosecutor". Andalou. Retrieved 28 November 2023.
  121. ↑ Speri, Alice (October 5, 2021). "How the U.S. Derailed an Effort to Prosecute Its Crimes in Afghanistan". The Intercept. Retrieved November 28, 2023.
  122. ↑ "US Sanctions on the International Criminal Court". Human Rights Watch. December 14, 2020. Retrieved November 28, 2023.
  123. ↑ Sam Husseini [@samhusseini] (November 7, 2023). "WATCH: State Dept claims they aren't pressuring Abbas against invoking the Genocide Convention at the World Court to stop Israel's assault" (Tweet) – via Twitter.
  124. ↑ Mike Corder (November 16, 2023). "5 European nations and Canada seek to join genocide case against Myanmar at top UN court". AP News. Retrieved December 2, 2023.
  125. ↑ "Bangladesh seeks OIC's help to continue Rohingya genocide case". Dhaka Tribune. November 10, 2022. Retrieved December 2, 2023.
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