Prevention of genocide is a state obligation

English philosopher, jurist and social reformer Jeremy Bentham, who founded the philosophy of utilitarianism, international law is a collection of rules governing relations between nations and, in principle, operates only at the international level. Prof Lassa Francis Lawrence Oppenheim, a German jurist acknowledged as the father of modern international law, produced a seminal two-volume work, the first on “Peace” in 1905 and the second on “War and Neutrality”, a year later, before his death in 1919.

Oppenheim conceived international law as the “law of nations” and defined it as a body of customary and conventional rules regarded as legally binding by civilised states in their relations with one another. This definition was later revised by Sir Robert Jennings and Sir Arthur Watts in 1992.

A major effort to codify the sources of international law appears in the Statute of the International Court of Justice, annexed to the UN Charter of 1945. According to Article 38, treaties, custom and general principles of law constitute the primary sources for resolving disputes between states and maintaining international peace and security.

Until the twentieth century, only states were regarded as subjects of international law. This position changed after the adoption of the UN Charter (1945), which initiated the recognition of individual rights through instruments such as the Universal Declaration of Human Rights (1948) and numerous human rights treaties. Among them are the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child. Despite this normative expansion, individuals initially had limited access to international judicial mechanisms for the enforcement of these rights.

Individuals were subjected to international criminal responsibility for the first time under the Nuremberg Charter (1945), which authorised the prosecution of senior members of the Nazi regime for crimes, including genocide and crimes against humanity. A parallel tribunal at Tokyo tried members of the Japanese military leadership for war crimes. The Nuremberg Tribunal recognised three categories of international crimes: crimes against peace, war crimes and crimes against humanity.

Half a century later, genocide was expressly incorporated into the Rome Statute of the International Criminal Court (ICC), alongside war crimes, crimes against humanity and the crime of aggression. Although the Treaty of Versailles had envisaged the creation of an international criminal tribunal to prosecute Kaiser Wilhelm II, that court never materialised.

Liability of state for breaching International Law:

States are responsible for breaches of international law committed by their organs and, in certain cases, by individuals acting on their behalf. The International Law Commission’s 1996 Draft Articles affirmed that states may incur responsibility for international crimes, including aggression and genocide.

The Genocide Convention (1948) recognises genocide as a grave crime against humanity and emphasises international cooperation for its prevention and punishment in peace or war. In the Bosnian Genocide case, the International Court of Justice held that all states have a duty to prevent genocide, a principle that relied upon The Gambia in proceedings against Myanmar for alleged failures to protect the Rohingya in Rakhine State.

In the context of the Israel–Hamas war (2023–2025), the UN Human Rights Council reported that Israel committed acts amounting to genocide against Palestinians. On November 21, 2024, the International Criminal Court issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant for war crimes, and crimes against humanity, as also using starvation as a warfare method between October 2023 and May 2024.

The legality of these warrants draws on established jurisprudence, notably Prosecutor v. Radislav Krstić before the International Criminal Tribunal for the former Yugoslavia, where it was held that leaders may be held responsible for crimes committed by subordinates if they knew or should have known of those acts and failed to prevent or punish them.

The tribunal also clarified that both public officials and private individuals may incur liability. Krstić was ultimately convicted of genocide for crimes committed against Bosnian Muslims in Srebrenica. In the Palestinian context, the central legal question remains whether the requisite intent to commit genocide can be established. The International Criminal Tribunal for Rwanda emphasised that genocidal intent requires acts to be committed against members of a group because of their group identity. Starvation used as a method of warfare can constitute genocide is, hence, critical. Such intent may be inferred from circumstantial evidence, including reports of denial of humanitarian relief to Palestinians.

State obligation on prevention of genocide:

International cooperation is essential to realise the objectives of the UN Charter and the Genocide Convention. Such cooperation operates in two stages: preventive measures aimed at averting genocide, and post-crime cooperation to prosecute perpetrators. Article VIII of the Genocide Convention permits states to invoke UN action to prevent and suppress genocide, while Articles IV and VII emphasise criminal responsibility.

The Gaza peace plan, also known as the October 2025 ceasefire or the 20-point plan, is a multilateral initiative between Israel and Hamas led by US President Donald Trump. Signed on October 9, 2025 and endorsed by the UN Security Council on November 17, 2025, it sought to end the war that began on October 7, 2023, which caused severe humanitarian devastation, including mass displacement and refugee crises affecting millions of Palestinians.

Under the plan, Hamas agreed to release hostages in exchange for Palestinian prisoners, with the broader aim of creating a de-radicalised and secure Gaza and enabling reconstruction. Its central feature is the demilitarisation of Gaza through the dismantling of Hamas’s military infrastructure.

The State of Palestine is recognised by around 150 UN member states and enjoys a Permanent Observer State status. Last September, several Western states formally recognised Palestine, though Israeli Prime Minister Benjamin Netanyahu continues to oppose its statehood, claiming West Bank as Israeli territory. The US administration has also been reluctant to legitimise Hamas, which complicated the peace process.

Many international law experts remain sceptical of the initiative, arguing that peace efforts will be ineffective unless they address Palestinian statehood, the return of displaced persons, accountability for genocide, and reparations. Although supported by former US Presidents Joe Biden and Bill Clinton, unresolved issues surrounding justice and recognition threaten the plan’s credibility.

A two-state solution remains the most viable framework, but lasting peace will lack legitimacy without accountability and redress for Palestinian suffering.

(The writer is visiting faculty at Post Graduate College of Law, OU)