Could the US and other states be implicated in South Africa’s genocide case against Israel?

On January 26, the International Court of Justice (ICJ) released its order to grant provisional measures in South Africa’s case against Israel for genocide. The same day, the US District Court for the Northern District of California heard arguments alleging the United States’ complicity in genocide against Palestinians in Gaza in violation of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) and US law. While the case was dismissed on procedural grounds, in the decision released on January 31, Judge Jeffrey White invoked the ICJ’s order: The “undisputed evidence before this Court comports with the finding of the ICJ and indicates that the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law.”

The ICJ’s January 26 order dealt exclusively with provisional measures, and so it did not determine if Israel is committing a genocide. However, it did find “that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.” In addition to the attention this order cast on the case between Israel and South Africa, it also raised anew the question of whether other, so-called “third states” might find themselves drawn into the case.

For example, some third states have already drawn criticism for actions such as supplying military aid to Israel and the suspension of funding to the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA). As demonstrated in Judge White’s ruling, the ICJ’s finding could inspire possible proceedings against those third states for complicity in and failure to prevent genocide—both at the ICJ and elsewhere.

Could a case be brought before the ICJ?

Any state that is party to the Genocide Convention has standing to bring a case for an alleged breach, even if that state is not involved in the genocide. The ICJ established this precedent in 2020 in a case The Gambia brought against Myanmar, and it is how South Africa brought the current case against Israel.

The Genocide Convention requires preventing genocide, and prohibits commission of, conspiracy to commit, direct and public incitement to commit, attempt to commit, and complicity in genocide. A third state could, theoretically, be found responsible for any of these violations. In the case of South Africa v. Israel, two violations in particular have been raised: complicity in genocide and failure to prevent genocide. For complicity, the ICJ has explained that it includes “the provision of means to enable or facilitate the commission of the crime,” such as furnishing “aid or assistance.” The state needs at least to have acted knowing that the perpetrator of the genocide had a special intent, or dolus specialis, “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The ICJ left open the possibility that the complicit state would also need to share this special intent. However, courts have not required complicit parties to share the special intent in international criminal cases, suggesting that the ICJ might not require it.

The ICJ distinguished failure to prevent genocide from complicity by noting that failure to prevent genocide does not require that states take action. Instead, it is a matter of a state failing to take action. It does not require specific results—meaning that a failed attempt to prevent genocide does not incur liability. But in analyzing whether a state has fulfilled its obligations under the Genocide Convention, the ICJ does look at “the capacity to influence effectively the action of persons likely to commit, or already committing, genocide.” Unlike complicity, the state need only be “aware, or should normally have been aware of the serious danger that acts of genocide would be committed”—a lower mental threshold.

In its 2007 judgment in a case brought against Serbia and Montenegro, the ICJ confirmed that for it to find either complicity in or failure to prevent genocide, a genocide has to have occurred. However, it is not necessary for the ICJ to determine that a genocide occurred before an application against a third state can be filed. Any state party to the Genocide Convention, therefore, could have standing to file an application, including requesting provisional measures, against a third state for at least complicity in or failure to prevent genocide by Israel.

What acts could merit a case before the ICJ?

In the context of Israel and Gaza, two main possible acts have been raised as constituting complicity in or failure to prevent genocide: the provision of military aid and the suspension of funding to UNRWA.

First, countries such as the United States and Germany supply military equipment and aid to Israel, despite public reports on the risk of genocide. The case in the US District Court for the Northern District of California alleging genocide was filed against US officials on November 13, indicating that the Biden administration was on notice of the risk before the January 26 ICJ order. In December 2023, Biden twice used an emergency determination, avoiding congressional review requirements, to provide more than $250 million in military equipment to Israel.

Such actions might constitute the furnishment of aid or assistance for complicity. Experts have also argued that the United States has sufficient influence over Israel that its actions—and inaction—violate the duty to prevent genocide. However, the United States has a reservation to the Genocide Convention, upheld by the ICJ, that mandates that the United States must give its consent to be brought before the ICJ on any claims under the Convention—and it is unlikely to give such consent.

Second, at least twelve donor countries “temporarily suspended funding” for UNRWA after the January 26 announcement that it had identified several employees who were involved in Hamas’s October 7 attack, and that it was investigating and terminating the contracts of those involved. UNRWA said it will likely be forced to shut down by the end of February given the funding cuts. The UN Emergency Relief Coordinator noted that “[their] humanitarian response for the Occupied Palestinian Territory is completely dependent on UNRWA being adequately funded and operational.”

International law professor Douglas Guilfoyle, among others, has argued that the provisional measures ordered by the ICJ indicate that the provision of humanitarian aid is necessary to prevent genocide, and so the suspension of funds could be considered failure to prevent genocide. Given notice of the influence the funding has on UNRWA—and therefore the provision of humanitarian aid to Palestinians in Gaza overall—suspending that funding while knowing the risk could constitute “deliberately worsening ‘conditions of life’ found plausibly to be ‘calculated to bring about. . . physical destruction.’”

Conversely, Israel has accused UNWRA as an institution—as opposed to individual members—of “working with, or at least turning a blind eye to, Hamas operatives in Gaza.” Should investigations lead to credible findings—for example, a determination comparable to that of the ICJ’s January 26 order or a well-evidenced complaint—then states such as the United States might face potential legal liability for funding UNRWA and would need to pursue alternative methods of using their influence to help supply humanitarian aid to Gaza.

Already, Nicaragua—itself accused of an ongoing genocide of indigenous communities—is reportedly considering filing an application with the ICJ against the governments of the United Kingdom, Germany, the Netherlands, and Canada for the provision of weapons and other assistance to Israel. It has sent a note verbale to each government, which would help establish the “existence of a dispute,” a necessary component for the ICJ’s jurisdiction. South African Minister of International Relations and Cooperation Naledi Pandor has likewise raised the possibility of future ICJ cases against such states.

However, while the January 26 ICJ order does provide notice of a plausible genocide, the mental requirements for complicity in genocide and, to a lesser extent, failure to prevent genocide are high. The ICJ could adopt provisional measures against third states based on the plausibility standard. A final judgment however, would require the ICJ to confirm that Israel is committing genocide—which states such as the United States and United Kingdom continue to deny—and that, for complicity, the third state at least knew of Israel’s special intent—or, in the case of failure to prevent, that the third state was or should have been aware of the serious danger that acts of genocide were being committed.

Third states may also choose to intervene in the proceedings between South Africa and Israel either if they have a legal interest in the result or they are a party to the Genocide Convention and have an interest in the ICJ’s interpretation of it. Nicaragua has applied to do so, requesting that the ICJ find that Israel has violated the Genocide Convention. While Germany offered to intervene in support of Israel in January, it has not yet applied but has called on Israel to comply with the ICJ’s provisional measures.

What cases could be brought elsewhere?

The International Criminal Court—which is legally distinct from the ICJ—has jurisdiction over crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014,” and is not limited by immunities. Under Article 25(3)(c) of the Rome Statute, it can prosecute those who facilitate the commission of crimes, including through the provision of means. However, it has not yet publicly released any arrest warrants related to the situation in Gaza.

Domestic jurisdictions generally criminalize genocide, but immunities and other barriers such as prosecutorial discretion make it unlikely that state officials could be charged with complicity in genocide. After the recent hearing in northern California, Judge White dismissed the case, but for procedural reasons, finding that the specific claims “raise[d] fundamentally non-justiciable political questions.” He noted that: “There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases.” At the same time, this dismissal leaves open the possibility that groups could bring related but distinct claims—for example, against companies continuing to provide and transport military equipment to Israel. For such a case, the January 26 ICJ order could help establish that relevant actions after that date were taken despite knowing the risk of genocide. Indeed, a Japanese company’s aviation unit ended its “strategic cooperation” with an Israeli defense company “[t]aking into consideration” the ICJ’s order.

What does this mean for the US government?

Additional legal actions could further influence US policy. Some US government officials have already voiced their dissent over Biden’s Gaza policy, and more than eight hundred US, UK, and EU officials signed a public letter on February 2 to protest their governments’ position on the war in Gaza. International protests in support of Gaza are still continuing. Domestic US polls indicate disapproval among young voters of Biden’s handling of the conflict, of particular concern given the November 2024 election.

The Biden administration could, then, take actions in response to the January 26 order. For example, in order to fully address the legal risk, the administration could halt military aid to Israel or condition it on Israel’s compliance with the ICJ’s provisional measures, and could resume funding to UNRWA or find a way to fund other humanitarian aid initiatives that could viably fulfill UNRWA’s role in Gaza.

On top of the binding nature of legal judgments—including any ICJ additional orders—such proceedings could serve as additional pressure points on the Biden administration’s policies. The ICJ lacks enforcement power, and while measuring compliance isn’t always straightforward, states sometimes ignore provisional measures and final judgments. The United States, in particular, has a rocky history with ICJ compliance, and as indicated above, has a reservation on the Genocide Convention shielding it from findings of culpability. Legal actions—especially those at the ICJ, either against the United States or its allies—could trigger unintended domestic backlash in the United States against the institutions hosting the claims. For example, former President Donald Trump imposed targeted sanctions on International Criminal Court officials, including then-Prosecutor Fatou Bensouda, over the Office of the Prosecutor’s investigation into US military actions in Afghanistan. The Biden administration has since revoked the executive order authorizing the sanctions. However, US members of Congress have already introduced a bill calling for a “full review” of US-South Africa relations over the ICJ case, to assess whether “South Africa has engaged in activities that undermine United States national security or foreign policy interests.”

While legal actions run the risk of delegitimizing the ICJ for some within the United States, others are likely to view them as strengthening the legitimacy of international law. Genocide “is singled out for special condemnation and opprobrium,” which is why the “gravity of genocide is reflected in the stringent requirements” of criminal convictions and ICJ judgments. Even if the United States avoids an ICJ finding of complicity in or failure to prevent genocide, such a judgment against its peers for acts the United States has also undertaken would influence public perception of the conflict and the United States’ role. While not as unequivocal as a finding of US complicity, it may further push US policy on the issue.

Celeste Kmiotek is a staff lawyer for the Strategic Litigation Project at the Atlantic Council.

Further reading

Image: People stand inside the International Court of Justice (ICJ) as judges hear a request for emergency measures to order Israel to stop its military actions in Gaza, in The Hague, Netherlands January 12, 2024. REUTERS/Thilo Schmuelgen