The “Capacity to Influence”, State Responsibility, and the Obligation to Prevent Genocide by Jinan Bastaki

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.

  • Perhaps the most clear example of failing to prevent is the provision of weapons (which, if states knew of the intent to commit genocide, and genocide is indeed found to have been committed, can make them complicit in its commission). Several European countries, including Belgium, Italy, and Spain suspended arms transfer to Israel, and a statement issued by UN experts warned that any transfer of weapons or ammunition to Israel that would be used in Gaza is likely to violate international humanitarian law. As a result of a petition by Dutch NGOs, the Court of Appeal in the Hague ordered the state to stop all export and transit of F-35 fighter jet parts to Israel. 

…The UN Relief and Works Agency (UNRWA) provides support for almost 2 million people in Gaza, and has by far the greatest capacity to aid and assist those in Gaza as well as access to different parts of the Strip. As a result of unsubstantiated allegations against it following the ICJ’s order, several major states decided to cut off funding. Within the context of famine setting in and the blocking of aid from entering Gaza and particularly in the north, the severing of UNRWA aid assists in inflicting severe bodily and mental harm (Genocide Convention, Article 1C) upon the population, as well as creating conditions of life calculated to bring about its physical destruction in whole or in part (Article 1C). 

…The non-exhaustive categories cited in the Bosnia v Serbia case were “political, military and financial links,” as well as “links of any kind.” The Court specifically noted that the strength of these links gave Serbia influence unlike any other state party to the Genocide Convention (para. 434) and it encompassed “all those with whom the Respondent maintained close links and on which it could exert a certain influence,” (para. 435). The responsibility of the authorities was to make “the best efforts within their power to try and prevent the tragic events then taking shape,” (para. 438). As stated previously, states are to contribute to restraining in any degree.

Does this encompass significant trade between countries? One country cutting economic ties may or may not help to prevent genocide, but as the Court pointed out, the duty is to act, and “the combined efforts of several States, each complying with its obligation to prevent” (para. 430) may avert the commission of genocide. As an example, the Japanese company Itochu severed its relationship with Elbit systems, the Israeli defense contractor. The agreement between them was not for the transfer of weapons or the provision of Japanese technology for the Israeli military, but rather to procure material for the Japanese military. Still, as a result of the ICJ’s provisional measures order on the 26th of January and “that the Japanese government supports the role of the Court,” Itochu Aviation decided to suspend cooperation. This is significant as, while Itochu is a general trading company, the partnership with Elbit was based on a request from Japan’s defense ministry. 

… An argument can be made for the fact that several countries, each putting major economic and diplomatic pressure, by cutting off or suspending trade deals, cooperation, and the like, can have a combined effect of, at the very least, restraining Israel.

Continue reading at https://opiniojuris.org/2024/03/30/the-capacity-to-influence-state-responsibility-and-the-obligation-to-prevent-genocide/