Mr. President of the Republic, Élysée Palace, 55 rue du Faubourg Saint-Honoré, 75008 PARIS, October 19, 2024, in Paris, Mr. President of the Republic, The French Jurists Association for the Respect of International Law (JURDI) is contacting you to ask you to initiate, in view of the plausible risk of genocide in the Gaza Strip, a new direction much more committed to the implementation of the obligation to prevent genocide than that followed by the previous government, a new direction which would correspond much better to the French tradition of respect and implementation of international law.
As you know, on January 26, 2024, the International Court of Justice (ICJ) has, in the context of the case Implementation of the Convention on the Prevention and Punishment of the Crime of genocide in the Gaza Strip (South Africa v. Israel), The Court issued an order stating that there is a plausible risk of genocide being committed by the State of Israel against the Palestinian population in the Gaza Strip. This risk led the Court to order strict provisional measures, reinforced by a further order on March 28, 2024, to try to prevent or stop it. On May 24, 2024, the ICJ adopted further provisional measures, ordering Israel to cease its military offensive in Rafah and any action in that area that could subject the Palestinians in Gaza to living conditions capable of bringing about their physical destruction, in whole or in part. The measures ordered by the Court are not being respected by the State of Israel, which further increases the risk of the commission of the crime of genocide in the Gaza Strip.
Despite these legally binding measures emanating from the highest international court, France has not adopted any concrete steps since January 26, 2024, to ensure that its public and private actors are not implicated in the commission of this plausible crime of genocide in the Gaza Strip. The nature and intensity of the diplomatic, military (arms and ammunition supplies, exchanges between the armed forces), economic, commercial, financial, technological, scientific, academic, and human relations between France and Israel necessitate, in light of the need to comply with international law, a complete overhaul of these relations.
Indeed, the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948 requires France, on the one hand, to act to prevent the commission of the crime of genocide and, on the other hand, to ensure that it does not provide any "aid or assistance" to the commission of this crime.
We have attached to this letter a detailed note which outlines and explains the basis and modalities of France’s international obligations in this matter.
The French Association of Jurists for the Respect of International Law (JURDI) is at your disposal to discuss with your services the content and modalities of the new direction which must be taken so that France, its public and private actors, whether legal persons or natural persons, cannot be accused, including before the courts, of having been complicit in violations of the obligation to prevent the commission of a crime of genocide.
The President of JURDI, Patrick ZAHND
APPENDIX:
The Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (hereinafter "the Genocide Convention"), ratified by France on 14 October 1950 before its entry into force on 12 January 1951 and today by 153 States, including Israel on 9 March 1950, defines the crime of genocide, a definition taken up by the Rome Statute creating the International Criminal Court (ICC).
The Convention contains three main obligations that are incumbent upon the States Parties:
- prohibit the crime of genocide and refrain from committing it.,
- to punish the crime of genocide,
- to prevent the crime of genocide.
The International Court of Justice (ICJ), responsible for settling disputes between States concerning the interpretation, application, or execution of the Genocide Convention, has indicated that, due to their shared values, all States Parties to the Convention have, by subscribing to the obligations contained therein, a common interest in ensuring that genocide is prevented, suppressed, and punished. Such a common interest implies that the obligations in question are owed by each State Party to all other States Parties to the treaty. These are obligations erga omnes partes, In this sense, regardless of the situation, each State Party has an interest in ensuring that they are respected (ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Gambia v. Myanmar, Preliminary Objections, 22 July 2022, § 107). Similarly, the European Court of Human Rights has reiterated that ’under Article 1 of the Genocide Convention, the Contracting Parties have an obligation erga omnes to prevent and suppress genocide, the prohibition of which falls under the juice cogens » (ECHR, 12 July 2007, no. 74613/01, Jorgic v. Germany, § 68).
Among the three principal obligations, the obligation of prevention requires States, as well as the United Nations, to adopt legislative or other measures to prevent the commission of a crime of genocide (Articles 1, 5, and 8 of the Genocide Convention). The ICJ has clarified that, like the obligations of prohibition and repression, the obligation to prevent genocide is part of customary international law: it is therefore binding on all States and has "normative scope and an obligatory character" (ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, § 427).
The ICJ has also ruled that this obligation of prevention has an extraterritorial scope, in that it applies to all States and not only to the State on whose territory a genocide is committed (ICJ, Case relating to the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, § 432).
Thus, States with the capacity to influence others have a duty to use all means reasonably at their disposal to prevent the crime of genocide, including in the case of acts committed outside their borders. The obligation to prevent, as its name indicates, implies acting before the crime is committed. It is therefore in no way required that the crime of genocide have been definitively established by a national or international court. The obligation of States to prevent genocide is precisely aimed at preventing, or attempting to prevent, the occurrence of such a crime, which necessarily requires naming it before it takes place (ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, § 431). The obligation to prevent genocide and the corresponding duty to act arise for a State when it becomes aware, or should reasonably be aware, of the existence of a serious risk of genocide being committed. From that moment, the State is obligated, if it possesses means capable of having a deterrent effect on the State and on persons suspected of preparing genocide, or who may reasonably be feared to harbor the specific intention of using those means, according to the circumstances.
The content of this obligation of prevention is reflected in the implementation, at the national, regional, or international level, of mechanisms and policies to identify and combat the risk factors of genocide. History has repeatedly demonstrated that genocide is a process accompanied by warning signs that allow its occurrence to be predicted. Moreover, genocide is not constituted solely by the destruction of the targeted group: acts committed with the intention of total or partial destruction are sufficient, regardless of any material evidence to establish them. The International Criminal Tribunal for Rwanda (ICTR) reiterated this in its very first case: «Contrary to popular belief, the crime of genocide is not contingent upon the actual annihilation of an entire group» (ICTR, Akayesu, Judgment of 2 September 1998, § 497). Similarly, the ICC Statute does not make the crime of genocide contingent upon the annihilation of an entire group: according to Article 6, the offense is established as soon as one of the acts was committed with the specific intent to destroy a national, ethnic, racial, or religious group, "in whole or in part." The implementation of the obligation to prevent genocide, incumbent upon both States and the United Nations, is therefore justified by the intent to destroy, and not by the actual destruction of the group; otherwise, the obligation to prevent genocide would be meaningless.
Therefore, and by application of this obligation, all States are required to prevent genocide, and, a fortiori, to cease all conduct of aiding and abetting the commission of this crime. This prohibition of any form of "complicity" is simply the application to the crime of genocide (ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, § 419) of the more general rule prohibiting any State under international law from providing aid and assistance (by supplying means) to any internationally wrongful act or deed (Articles 16, 40, § and § 2 of the Articles on State Responsibility for Internationally Wrongful Acts). The ICJ clarified that "complicity" presupposes a positive action, whereas a violation of the obligation to prevent "results from the mere failure to take and implement adequate measures to prevent the commission of genocide.".
Thus, it is incumbent upon States not only to ensure they do not provide aid and assistance (through positive action) to a State likely to commit the crime of genocide, but also to exercise due diligence, within their capabilities, to help prevent the commission of possible acts of genocide. The ICJ has indicated that, for the Court, this is an obligation of conduct, not of result, the content of which depends on the capacity—which varies from one State to another—to influence the actions of the State and of individuals "likely to commit or who are in the process of committing genocide." Compliance with this obligation implies taking measures targeting public and private actors under the jurisdiction of each State concerned. To comply with their obligation to prevent genocide, States must therefore, individually, adopt retaliatory measures (interruption of diplomatic relations) or "counter-measures" (adverse economic measures, such as the suspension of a trade agreement, an embargo on arms and ammunition, individual sanctions, etc.) aimed at putting pressure on the State concerned, in accordance with the rules of common law of international responsibility.
Applied to the risk of genocide in the Gaza Strip, this obligation of prevention concerns all States, but particularly those which declare themselves to be allies or partners of Israel, namely the United States, Canada, Australia and certain European States – including France – and the European Union.
To comply with their international obligations, these States must adopt appropriate measures, on the one hand, to refrain from providing any aid or assistance to the commission of the crime of genocide and, on the other hand, to take concrete actions to prevent genocide by leading Israel to change its behavior.
The supply of arms and ammunition to Israel, while a plausible risk of genocide in the Gaza Strip has been stated by the ICJ since January 26, 2024, can be considered as a form of aiding and abetting the commission of the crime of genocide.
This is why more than 30 independent UN human rights experts called on February 23, 2024, for an immediate halt to arms exports to Israel, a call echoed in a UN Human Rights Council resolution of April 5, 2024 (A/HRC/55/L.30).
This obligation to cease all supplying arms and ammunition to Israel is all the more binding on European states (including France), as they are parties to the Arms Trade Treaty adopted on April 2, 2013, and which entered into force on December 24, 2014 (France ratified it on April 2, 2014). Under Article 6, paragraph 3, of this treaty, a State Party must refuse any transfer of arms if it has substantial grounds to believe, based on information in its possession or reasonably accessible to it, that the arms will be used to commit genocide. Such information is now widely accessible and available, if only through reports from United Nations bodies and the proceedings initiated by South Africa against Israel and by Nicaragua against Germany.
Similarly, the provision to Israel by European states (including France) and the European Union of economic, commercial, financial, technological, scientific, academic, and human resources that could facilitate the commission of acts of genocide could be considered a form of aiding and abetting the commission of the crime of genocide. Therefore, it is incumbent upon European states (including France) and the European Union to re-examine and reorganize, in light of the obligation to prevent genocide, all of their relations with Israel.
Finally, it is up to European states (including France) and the European Union to take concrete action to prevent genocide by compelling Israel to change its behavior. These actions could include retaliatory measures (such as severing diplomatic relations) or countermeasures (adverse economic measures, like suspending the EU-Israel trade agreement, imposing embargoes on certain Israeli products, or imposing individual sanctions) aimed at putting pressure on Israel, in accordance with the general principles of international law and international responsibility.
View the full document