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A duty to prevent genocide: initial reflections on justiciability before the courts of England and Wales

The Genocide Convention of 1948 requires, by Article I, that each and every State party “employ[s] all means reasonably available to them, so as to prevent genocide so far as possible”: ICJ judgment in Bosnia v Serbia, at para. 430. This obligation is of an erga omnes partes nature; it is owed by all 153 parties to the Convention to each other. The communal nature of the obligation was recounted in the Court’s 2020 order on Provisional Measures in Gambia v Myanmar at para. 41. The UK, a State party to the Convention since 1970, has recognised the erga omnes obligation, and asserted its own “common interest” in the accomplishment of the “high purposes of the Convention” in its joint intervention in Gambia v Myanmar, at para. 10.

 

But if the UK were failing to meet its obligations to prevent genocide in Gaza under Article I of the Convention, to what degree could such omissions be challenged within the courts of England and Wales?



South Africa’s case against Israel before the ICJ

 

On 29 December 2023, in the wake of Israel’s military intervention in Gaza, which followed Hamas’ attack against Israel on 7 October 2023, South Africa instituted proceedings against Israel before the ICJ on the basis of alleged breaches of the Genocide Convention, to which both States are party. Its application has been compared to that brought by the Gambia against Myanmar, on similar erga omnes standing (which was prima facie accepted by the Court in the latter). Like the Gambia and Ukraine (regarding Russia), South Africa also seeks provisional measures against Israel.

 

Particular to South Africa’s case, however, is its insistence that it itself – and not just Israel – is under a duty to prevent genocide in Gaza by the application of Article I of the Convention. It explicitly invokes “South Africa’s compliance with its own obligation to prevent genocide” (para. 16). This feature is examined in the excellent EJIL: Talk! blog post by Luciano Pezzano, which includes a discussion on whether invoking Article IX of the Convention before the ICJ could itself be a required form of “prevention”.

 

Implications for State parties at a domestic level

 

States will be keeping a close eye on the Court’s decisions on Provisional Measures and beyond, and whether or not South Africa’s construction of the erga omnes obligations to prevent genocide it relies upon are endorsed or expanded upon. Allegations of failures to prevent genocide have already been brought before domestic courts in at least the US: see this complaint filed in a California District Court on 13 November. Indeed, some of the potential impacts of South Africa’s case for States party at a domestic level have been examined in a recent post by Alaa Hachem and Oona A. Hathaway’s post on Just Security.

 

In England and Wales, a case challenging UK arms export licences has already been brought before the High Court, by Al-Haq and UK-based Global Legal Action Network. The UK’s position on Israel’s actions in Gaza has, more widely, been the subject of scrutiny and accusations of hypocrisy. The Government’s actions may not be comparable to those of the US’, given the UK’s assertion that “since 7 October 2023, the UK Government has provided no lethal or military equipment other than medical supplies to Israel” itself, and its abstention from, but not blocking of, resolutions calling for a ceasefire tabled before the UNGA and the UNSC in December 2023.

 

However, in comparison to South Africa – who drew attention in its application to “concerns” it has expressed” regarding Israel’s conduct in different fora and on various occasions from late October to late December 2023 (see para. 13) – the UK’s response to Israel’s war has been meagre. For example, speaking on 25 October 2023, Prime Minster Sunak stated “there has to be a safer environment, which of course necessitates specific pauses, as distinct from a ceasefire” (in the intervening period, the UK’s position – echoed by the leader of the opposition – has consistently fallen short of calling for a ceasefire). It has not altered its arms export licences criteria to prevent arms from being sent to Israel. At the same time, the UK has remained silent as Israeli Ambassador to the UK, Tzipi Hotovely, when confronted by a presenter who suggested the Ambassador’s arguments supported “destroying the whole of Gaza – every single building in it”, respondedso do you have another solution?” If the situation in Gaza does indeed amount to genocide, it would be difficult to argue that the UK has done more than the bare minimum (late in the day) to prevent it. 

 

Although the requirements which comprise the duty to prevent elucidated in the ICJ’s Bosnia v Serbia judgment at para. 430 leave room for ambiguity and interpretation (see para. 56 of the ICJ’s Order on Provisional Measures in the Ukraine v. Russia), they are arguably clear on:

 

a.    Responsibility for breaches of the Convention arising where a State “manifestly fail[s] to take all measures to prevent genocide which were within its power and which might have contributed to preventing the genocide” (emphasis added);

 

b.    Parameters for measuring discharge of the obligation “var[ying] greatly from one State to another” depending on the State’s “capacity to influence effectively the action of persons likely to commit, or already committing, genocide”, which itself depends on inter alia, strength of “political links”; and

 

c.     States’ preventative obligations “aris[ing] 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” and that thereafter if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, [] it is under a duty to make such use of these means as the circumstances permit.”

 

Against this background, although the UK’s provision of humanitarian aid (see i.e. recent FCDO press release) may well counter effects of the alleged commission of genocide, its response nevertheless arguably falls short of the standards set out in in the Bosnia v Serbia judgment for preventing the commission of genocide.

 

Significance of non-intervention in ICJ proceedings

 

The extent to which that (and future) ICJ rulings bind the UK as to the correct interpretation of erga omnes prevention obligations in Article I of the Convention is pertinent. The issue, which may play on the executive minds of many of the 153 State parties (and has not yet attracted much comment) is the role which Article 63 of the ICJ Statute. Article 63 prescribes:

 

1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.

 

2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

 

The warning in Article 63(2) may indeed go some way to explaining the reluctance we have seen vis-à-vis States pronouncing on South Africa’s application (helpfully mapped by Alonso Gurmendi), let alone submitting written interventions. However, given some States’ (including the UK’s) interventions in Gambia v Myanmar under Article 63, the hesitancy to intervene in the South Africa case may be less beneficial given the common erga omnes points alive in both matters. The distinction between intervening under Article 62 or 63 (and the attached tests) is helpfully examined in this blog post by Sean Aughey & Amy Sander of Essex Chambers, and will no doubt be a concern for interested States.

 

Yet the significance of Article 63(2) is invocative of the old saying “if a tree falls in a forest and no one is around to hear it, does it make a sound?”; if the ICJ makes a finding, on the substance of South Africa’s claim, of positive obligations to prevent under the erga omnes doctrine, but the UK (and others) have not intervened under Article 63, to what degree are must they abide by such an interpretation, if such a pronouncement is not reflective of customary international law? What is clear is that the judgments of the ICJ are highly persuasive, even when they do not bind States. For now, this is the extent of the position in which the UK finds itself with respect to the Bosnia v Serbia judgment, where neither the UK nor any other State intervened under Article 63(2).

 

Challenging non-compliance with international law in UK (England and Wales) courts

 

The UK’s arguable failure to take sufficient measures to prevent genocide (if genocide is indeed the correct characterisation) may one day be a matter for challenge before the courts of England Wales. This country’s historic compliance with international law is the subject for other analyses, but as Mauro Barelli put it, “[i]t is no secret that the UK does not always practice what it preaches” when it comes to its “self-proclaimed commitment to the international rule of law”. A pertinent case in point is the UK’s rejection of the ICJ’s Advisory Opinion on the Chagos Archipelago (it has only recently, here years later, agreed to opening negotiations with Mauritius) but there are, unfortunately, other examples. It is no surprise, therefore, that challenges to the UK’s (non-)compliance with international law have come before the courts of England and Wales. The immediate difficulty faced in this regard is that, unless an international obligation (or right) to which the UK agrees on the international plane is subsequently incorporated into domestic law – usually via an Act of Parliament (the Human Rights Act 1998 being a prime example) – it is not domestic law, and cannot form the basis of a “justiciable” legal challenge before our courts. The rationale for this has been that domestic law-making via international agreements entered into by the executive alone would undermine Parliamentary sovereignty.

 

Ratification, which is the executive undertaking legal obligations in a treaty, and undertaking that its domestic laws are compliant with that treaty, is a matter for the executive alone, per the royal prerogative (though since the enactment of s. 20 of the Constitutional Reform and Governance Act 2010, treaties must be laid before Parliament prior to ratification). It is a separate matter to incorporation. The UK’s reticence to fully incorporate the Convention Against Torture (“UNCAT”), for example, has been queried and criticised on more than one occasion by the UNCAT Committee, here and here.

 

Genocide legislation in England and Wales 

 

Has the Genocide Convention been incorporated into UK law? It was (or at least Articles II, III (a)-(d) and VII of it was) – the UK never incorporated its obligation to “prevent genocide” or to punish “complicity in genocide”. The piece of legislation which then repealed the Genocide Act 1969 was the International Criminal Court Act 2001. Although the commission of genocide (including modes of liability known as “ancillary offences”) is now a punishable offence under the 2001 Act, the Act still does not incorporate the UK’s duty to prevent the commission of genocide under Article I of the Genocide Convention, which is separate to the duty to punish. English courts would be unlikely, therefore, to exercise jurisdiction on the basis of the Genocide Convention alone.

 

Non-incorporation does not necessarily mean that domestic courts will refuse to engage with or even rule on international treaty obligations. Particularly in cases where a public policy or measure is taken in purported compliance with provisions of an unincorporated international agreement, English courts have ventured into assessments of compatibility with the same, but, only to a degree that permits them to assess whether the Government’s arguments on compliance are “tenable” or not: see R (on the application of Friends of the Earth Limited) v The Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14, para. 50, and R (on the application of Corner House Research and others) v Director of the Serious Fraud Office [2008] UKHL 60, para. 68. It follows that positive UK Government acts or policies which profess compliance or furtherance of obligations under the Genocide Convention may fall subject to, albeit mild, scrutiny of the courts of England and Wales.

 

Customary international law obligations

 

What about customary international law (CIL)? After all, the principles underlying the Genocide Convention are CIL: see (Reservations to the Genocide Convention, Advisory Opinion, p. 23, endorsed again by the ICJ in Armed Activities DRC v Rwanda, at para. 64). Peculiar though it might seem, CIL seems to be incorporated into UK law, even where no explicit incorporation (enactment) of the relevant principles has taken place: Trendtex Trading Corporation v. Central Bank of Nigeria [1977] Q.B. 529, p. 554 and R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.1) [2000] 1 A.C. 61, p. 90. The Court of Appeal in Trendtex held at p. 554:

 

Seeing that the rules of international law have changed - and do change - and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law.

 

There is therefore an argument to be made that the State’s duty to prevent genocide, a principle underlying the Genocide Convention, is already a part of UK domestic law, meaning that, in theory, a case against the Government could be grounded in it, and the matter should be justiciable (particularly with the help of the ICC Act 2001 which does explicitly incorporate some of the Genocide Convention).

 

The separate difficulty which arises is, of course, the nature and scope of the duty to prevent. As outlined above, the UK is so far not strictly bound (within the meaning of Article 63 of the ICJ Statute, at least) by the Bosnia v Serbia guidance on the duty – with the caveat that parts of that judgment may be CIL at this point. Scope for ambiguity in international obligations has prompted deference from English courts in the past. For example, in R. v Reeves Taylor [2019] UKSC 51, a case concerning charges brought against former Liberian President Charles Taylor’s wife in the UK, the Supreme Court held that “the mere fact that a particular reading may be seen as a desirable development of the law is not of itself a valid reason for adopting it. It is not for national courts engaged in interpreting a treaty to seek to force the pace of the development of international law, however tempting that may be”. Therefore, in the absence of clear CIL, it may be that that English courts would refuse to entertain a claim alleging a breach of the CIL duty to prevent genocide. It also bears noting here (subject to the same CIL caveat as above) that the UK has in any case not incorporated neither the ICJ Statute nor most of the UN Charter (though the House of Lords has interpreted the latter, at least: see Kuwait Airways Corporation v Iraqi Airways Company and Others, [2002] UKHL 19, para. 29).

 

Conclusion


Failures to act on the part of the State are, in domestic law, already difficult cases to litigate (usually brought as judicial reviews). The fact that the UK can and has positively acted (with contested degrees of lawfulness) in contexts where it perceived humanitarian disasters, however, is plain. With respect to Iraq, it invoked the contentious doctrine of humanitarian intervention regarding Iraq in 2003. It relied upon the 2005 World Summit Outcome Document responsibility to protect (known as “R2P”) doctrine regarding Syria. And most recently the UK has sanctioned Russia (and certain Russian entities and persons) to its eyeballs following Russia’s invasion of Ukraine, explaining “at the outset of the current crisis, the West warned Russia that any military escalation would have significant economic consequences, including an unprecedented package of sanctions”. None of this action or rhetoric has been present regarding Israel’s military intervention against Gaza, where the civilian death toll in a matter of months is more than double that in Ukraine over nearly two years. Neither situation is morally acceptable, and to the degree that both may constitute genocide, the obligation to prevent under the Genocide Convention incumbent on each State party to the Convention applies equally.

 

Relying on the duty to prevent genocide – whether as a treaty-based obligation or a matter of CIL – before English courts may be an avenue to holding one particularly powerful and influential party of the 153 members of the Convention to account. Challenges may be brought in a myriad of contexts and circumstances – on ECHR grounds, but on other bases too – and actors may choose to rely on the Genocide Convention in a corollary or supportive role. The weight this may have in a staunchly dualist jurisdiction such as this, however, is dubious – but we can hope that the spirit of the Court of Appeal’s ruling in the 1977 case of Trendtex continues to provide enlightening guidance.


Anna Rubbi is a probationary tenant at Guernica 37 Chambers. Her full profile is available here: https://www.guernica37.com/anna-rubbi

 

 

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