The Convention on the Prevention and Punishment of the Crime of Genocide, adopted on December 9, 1948, is currently a focal point for the judges sitting in The Hague, as the Rohingya Genocide Case (Gambia v Myanmar) and Genocide in the Gaza Strip (South Africa v. Israel) are both pending before the Court. These cases are similar in one respect: both were brought against a State accused of committing genocide. Genocide is an international crime entailing both national and international responsibility for individuals and States.  Thus, genocide does not only give rise to individual responsibility, which is prosecuted by municipal courts or ad hoc or permanent international criminal tribunals, but also to State responsibility under public international law. This dichotomy was reaffirmed by the ICJ in Bosnia and Herzegovina v. Serbia and Montenegro case. (paras 173-174)

Upon closer examination of the obligations under the Genocide Convention, the first thing to note is that under Article I, Contracting Parties have a direct obligation to “prevent” genocide (para 165). The obligation to prevent genocide necessarily involves the prohibition of committing the crime itself (para 166). Hence, any state practicing genocide would be in violation of Article I of the Convention.

Beyond this fundamental point, a pressing question arises: can this provision also create obligations for third States if one State commits this crime? If so, to what extent? At the first sight, this question seems reasonable given that the obligation to prevent  the crime of genocide is not territorially limited for contracting parties (para 153). Moreover, the scope of the obligation to “prevent” appears to be rather vague, allowing for broad interpretation.

For example, should States Parties cease certain economic activities with a State alleged to have committed genocide, activities that directly or indirectly contributed to the commission of genocide? Thanks to Nicaragua, the ICJ will soon take up this very issue, as the former has brought a case against Germany for failing to fulfill its obligation to prevent the genocide (that has been and is being committed against the Palestinian people in the Gaza Strip) and for contributing to the commission of the crime of genocide, thus violating the Convention. According to Nicaragua, Germany provided political, financial and military support to Israel, fully aware that the equipment it provided was being used by the Israeli army in acts of genocide (para 13). Further, the German government  suspended its aid to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). In this respect, Nicaragua argues that the suspension of UNRWA funding would have grave consequences for Palestinians, especially those currently in Gaza. Ultimately, Nicaragua referred to another violation of international law under the Genocide Convention by Germany, namely its failure to act to “end” Israel’s wrongful acts against the Palestinians (para 38).

It is noteworthy that Nicaragua claims that the obligation to “prevent genocide” not only imposes a negative obligation (to refrain from “contributing to” or “assisting” the state committing genocide) but also a positive obligation to take steps to “put an end” to these unlawful acts. Nicaragua also considers Germany’s withdrawal of financial assistance to victims through UNRWA to be a violation of Article 1 of the Convention.

Even assuming that the obligation to prevent genocide extends to third countries, another issue that emerges is the assessment of when this obligation becomes applicable. 

Under the Genocide Convention, a contracting state’s obligation to prevent—and its corresponding duty to act—arises as soon as the state becomes aware, or should have been aware, of a serious risk that genocide will be committed (para 431). At this point, the founding of the ICJ can be applied mutatis mutandis to the third country.  On a parallel track, Nicaragua sought to demonstrate that there was reasonable suspicion that genocide was taking place in the Gaza Strip and that Germany was aware of this (paras 39-53).

In its Order of July 19, 2024, in response to Nicaragua’s request for provisional measures, the ICJ made some significant observations on this issue, namely third countries obligations rooting from the Genocide Convention. It first reminded that:  “[W]ith regard to the Genocide Convention, the Court has had the opportunity to observe that the obligation to prevent the commission of the crime of genocide, pursuant to Article I, requires States parties that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, to employ all means reasonably available to them to prevent genocide so far as possible.” (para 23) (see also ICJ Reports 2007 (I), paras 430-431)

Afterwards, the Court found that Germany had obligations concerning the transfer of arms to parties of an armed conflict and had to abstain from the risk that the arms it provided would be used to violate the Genocide Convention (para 24). While the Court has not yet reached a conclusion on the merits of the case, its preliminary observations suggest that third-country obligations are far from theoretical.

The question of contracting parties’ compliance with the arrest warrant issued by the ICC for Netanyahu and Gallant further underscore the importance of state responsibility in addressing violations under international law. If states fail to comply with such warrants or refuse to assist in their enforcement, the implications could be far-reaching. Such actions could be seen as tacit approval of the crimes in question, thereby strengthening the case for the international community to act more decisively to prevent further atrocities.