Last week, an Independent International Commission of Inquiry mandated by the United Nations Human Rights Council concluded that Israel is committing genocide in Gaza. The Commission reminds every UN member state that “even in the absence of an express order by the International Court of Justice, all States have a duty to assess whether a violation of the Genocide Convention has occurred or may occur” and “employ all means reasonably available to them to prevent the commission of genocide in Gaza.”
In response, Baroness Chapman, a U.K. Minister of State, told the House of Lords that the government’s position “remains that any formal determination as to whether genocide has occurred should be made following a judgment by a competent national or international court” and “that we do not ascribe genocide.” In so doing, Baroness Chapman echoed Under-Secretary Hamish Falconer’s explanation of last year. In a striking contradiction, the government has also sought to deny national courts’ competence on the issue. Regardless, the Commission is right to insist that governments must not wait for judicial determination. The United Kingdom has repeatedly and seemingly deliberately misconstrued its obligation to prevent genocide in Gaza.
Less than a week before the report, Prime Minister Keir Starmer hosted Israel’s President Isaac Herzog, whose infamous remark—“it’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware, not involved”—features prominently in South Africa’s genocide argument before the International Court of Justice (ICJ) and has been quoted by the Court itself. (Herzog stated that the Court misrepresented his remarks.) 60 MPs and peers objected to the invitation, invoking the United Kingdom’s. “obligations under the Genocide Convention.” To no avail.
On Sept. 1, then Foreign Secretary David Lammy wrote a letter to Sarah Champion MP, responding to her questions on the topic. The letter correctly specified the relevant legal test: “The duty to prevent genocide under Article I of the Genocide Convention (1948) arises when the UK learns, or should normally have learned, of the existence of a serious risk of genocide.”
And yet, immediately thereafter, Lammy reported that the government “has not concluded that Israel is acting with [genocidal] intent.” This formulation avoided concluding that Israel is not acting with genocidal intent, while also sidestepping whether there is a serious risk of that. The government’s more detailed Skeleton Argument from legal proceedings regarding military exports to Israel states that it is “at least tenable” to “conclude that the evidence does not establish that there was a serious risk of genocide,” but offers no support for this claim.
Crucially, both the Skeleton Argument and the letter erroneously dismiss the relevance of the ICJ repeatedly issuing provisional measures orders in South Africa’s case against Israel under the Genocide Convention. The letter states “the ICJ has neither found that Israel has breached its obligations under the Genocide Convention” (a point that is undisputed) “nor ruled on the plausibility of Israel committing genocide.” It is true that the Court’s determination of “plausibility” is generally understood to relate to Palestinians’ rights under the Convention, not to the claim that Israel is committing genocide, although the Court’s reasoning is not entirely clear on that distinction and the judges may themselves have been divided on the issue (see pp.40-44 here). But why does the government fail to heed what the Court unambiguously has found? After hearing Israel’s strongest arguments, the World Court determined three times that Israel’s conduct in Gaza posed a “real and imminent risk of irreparable prejudice” to the rights of Palestinians not to be subject to genocide. These determinations were based largely on Israel’s impediment of humanitarian relief and the deteriorating humanitarian crisis in Gaza. The situation is worse now than it was then.
The Skeleton Argument simply asserts that a “real risk” and a “serious risk” of genocide are not the same, ignoring the ICJ’s emphasis on imminence and irreparability, the repetition of provisional measures, and the obvious gravity of the situation in Gaza. In what sense is the risk identified by the ICJ anything other than serious? Is this the deference owed to a court the UK has supported as the ultimate authority on genocide in litigation relating to Myanmar and Ukraine?
It is worth emphasizing that on every element of genocide other than intent, the case could not be clearer. It is essentially incontestable that Palestinians are a protected group, that the Palestinians of Gaza are a “substantial” part of that group, and that Israel has inflicted destructive conditions of life on Palestinians in Gaza (most obviously, but not exclusively, through the decimation of agricultural areas, livestock, water systems, medical infrastructure, and homes, combined with devastatingly severe restrictions on humanitarian aid, culminating in the recent determination of famine in Gaza City and emergency conditions of food insecurity throughout Gaza). Indeed, UK ministers, including Lammy and Chapman in the letter and remarks cited above, have described the situation in Gaza as “appalling” and “catastrophic,” emphasizing Israel’s responsibility for the “horrors” that are unfolding, including what Chapman terms a “preventable” “famine.” And yet they invoke uncertainty on genocidal intent to avoid accepting the UK’s preventive duties under the Genocide Convention.
Starmer’s government likely knows a proper interpretation of the law would require a change of policy
To be clear, Israel’s conduct is manifestly unlawful, regardless of whether it is animated by the purpose to destroy the Palestinians of Gaza and therefore entails genocide. Critically, to entail genocide that purpose could coexist with others or not be pursued with maximal efficacy. Indeed, an effort at plausible deniability will often mean genocide is implemented with less than maximal efficacy, as exemplified in ICJ precedent by the genocide of Bosnian Muslims at Srebrenica. The conduct described above has occurred at scale, over a prolonged period, and has been framed by repeated dehumanizing statements from Israeli officials, including President Herzog and including those that influence state policy, statements that contribute to the evidence South Africa has gathered to show genocidal intent. Any lingering doubt about Israel’s genocidal intent ought to be understood as precisely the kind of uncertainty that remains in any “serious risk” assessment.
The UN Commission, like Amnesty International, and the Israeli organization B’tselem before, bluntly “concludes that the Israeli authorities and Israeli security forces have the genocidal intent to destroy, in whole or in part, the Palestinians in the Gaza Strip.” Even this latest conclusion from widely respected UN experts seems not to have dissuaded the UK government from its legally illiterate, morally indefensible attempt to deflect an urgent prevention duty to a court determination that is years away. The UK government need not agree with these organizations’ conclusions as to whether genocide is ongoing. However, their conclusions, like the ICJ provisional measures orders, mean the government cannot legally avoid its obligation to take action when there is a serious and real risk genocide may occur. Despite protestations to the contrary, Starmer’s government likely knows a proper interpretation of the law would require a change of policy, but the government misconstrues how its duties under the Genocide Convention apply to Gaza, yet again.
