Gary Spedding
Middle East Eye / November 27, 2024
This isn’t simply a case of passive inaction, but complicity at state level. Government ministers should be put on notice that they will eventually be legally held to account.
The UK government is engaged in a strategy of distraction, diversion and avoidance when it comes to how it responds when directly questioned on exactly what its legal duties are under international law as a third state.
Ministers have deliberately injected ambiguity over how they define genocide as part of this same strategy, all for the sole purpose of maintaining a policy of inaction that evades accountability and provides Israel with total impunity.
Comments from both the foreign secretary, David Lammy, in his statement on the Middle East on 28 October, and those of the prime minister, Keir Starmer, at two consecutive prime minister’s questions, have resulted in what is described by multiple organisations as a “deeply troubling ambiguity” on the pivotal issue of how the United Kingdom defines the crime of genocide.
Such statements are in contrast to international law, and gravely undermine the standing of the United Kingdom in the international legal community.
This government cannot be relied upon to discharge its international legal obligations under the Genocide Convention, and international humanitarian law more broadly, with any credibility. In addition, there is a weakening of our position when it comes to consistency in upholding international humanitarian law in the face of other atrocity crimes – a truly terrifying notion.
At present, the UK government is reliant upon a deeply flawed long-standing policy that isn’t grounded in law when it comes to the question of determining genocide, saying that it should be left to the judgement of competent courts.
But this isn’t simply about a refusal to recognise Israel’s atrocities against the Palestinian people as genocide, but rather that the current position is one of active avoidance from taking obligated action where there is a serious and imminent risk of violations that contravene the Genocide Convention.
Absurd idea
The idea that third states should wait for the International Court of Justice’s final judgement on the merits of South Africa’s allegations of genocide against Israel before they take action is frankly absurd. This is a misuse of the law’s accountability function (ie prosecuting perpetrators after the fact) as a smokescreen to weaken the law’s ability to guide obligated action in real-time.
Adhering to such a policy means that all of the victims (Palestinians) will either be dead or, in some other way, destroyed as a group of people before the government agrees to take action to stop it.
Article I of the Convention on the Prevention and Punishment of the Crime of Genocide includes an undertaking for all “contracting parties” (signatories) to “prevent and to punish” [genocide]. And the very same principle is reflected in common article I of the Geneva Conventions, placing an obligation upon third states to simultaneously respect and ensure respect for the conventions in all circumstances.
This mandate forms a binding international legal obligation for all third states, including the UK, to not only prevent genocide, but proactively take every possible action to deter, and bring to an immediate end, violations of these cornerstone conventions of international law.
Crucially, this obligation exists irrespective of the final ruling on the merits of any given case brought before an international court – as soon as there is a serious and imminent risk of a violation, it must trigger preventative action by third states.
Obligations are triggered at the very moment a state learns of a serious and imminent risk that genocide will be committed.
One expert legal opinion, prepared by Irene Pietropaoli, has emphasised the observations made by the International Court of Justice (ICJ) in the Bosnia v Serbia judgment (2007), which highlighted a key test in determining the moment a state’s duty to prevent genocide is triggered. The court, in referring to article 14(3) of the articles on state responsibility, held that:
“This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences […] the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. […] obligation to prevent, and the corresponding duty to act, arise at the instant that the state learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the state has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialist), it is under a duty to make such use of these means.”
Glaring inconsistency
Both the issuance of provisional measures by the ICJ in three interim orders in the South Africa v Israel application, and the arrest warrants requested by the International Criminal Court (ICC) prosecutor for key Israeli officials for crimes against humanity, including those of extermination and persecution, and the war crimes of starvation, wilful killing and the causing of great suffering or serious injury to body or health, have offered points where the UK’s obligation to prevent Israel’s violations of the Genocide Convention should have been engaged.
In his declaration accompanying the ICJ’s second order of provisional measures, Judge Abdulqawi Ahmed Yusuf said that the “alarm has now been sounded by the court”, continuing to comment that “all the indicators of genocidal activities are flashing red in Gaza”.
As such, it is impossible that the UK government is unaware that its obligations should have been triggered.
Morally speaking, as we bear witness to Israel’s acts of unjustified and very much preventable harm to the Palestinian people, the government is taking the bizarre stance of avoiding taking preventive and interventionist measures.
To date, the government refuses to even consider discerning the exact degree of Israel’s violations or the possibility that there is a serious and imminent risk that genocide is being committed, a stance evidenced in responses given to parliamentarians when they have asked for answers on the obligations the UK has under the Genocide Convention.
Inaction on Palestine has the potential to unravel the whole international legal order, with states unwilling to enforce their obligations, and rendering international law ineffective
Human rights organisations have documented that Israel has not fulfilled or adhered to any of the provisional measures ordered by the ICJ. In fact, the reality for Palestinians continues to get unimaginably worse as Israel intensifies its atrocities, and not just in Gaza – certainly the most urgent area deserving our focus – but also occupied East Jerusalem and the West Bank as well.
In addition to sidestepping its legal obligations, the UK government has disregarded the warnings and analysis of the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, and entirely ignored the latest report of the UN Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People, which found Israel’s warfare methods in Gaza consistent with genocide.
Inaction on Palestine has the potential to unravel the whole international legal order, with states unwilling to enforce their obligations, and rendering international law ineffective to the point of giving total impunity to multiple human rights-violating governments around the world.
Furthermore, there is a glaring inconsistency between the government’s interpretation of the Genocide Convention in the case of South Africa v Israel and that which the government itself has applied in the joint declaration of intervention (15 November 2023) in the case of the prevention and punishment of the crime of genocide (The Gambia v Myanmar, 11 November 2019).
Turning a blind eye
Adding to this hypocrisy, while representing Croatia a decade ago in 2014 during the proceedings of the ICJ against Serbia for violations of the Genocide Convention, Keir Starmer sustained that systematically destroying cities and “permanently eradicating” a population from its living space with the purpose of acquiring territorial control were indicative of genocidal intent.
And a little over three years ago, in a post on X on 21 March 2021, he said that “genocide can never be met with indifference, impunity or inaction”.
Starmer cannot claim ignorance when it comes to the definition of genocide. He is also well aware of the obligations of third states, and chooses to turn a blind eye when it comes to Israel.
Yet, today, as prime minister of the United Kingdom, he refuses to qualify the conduct of Israel in Palestine under the same legal parameters, considering that the Israeli government and military officials have abundantly and explicitly made clear that they intend to permanently eradicate the Palestinian population from north Gaza and extend sovereignty over the unlawfully occupied Palestinian territory in its entirety, with truly horrifying plans paving the way for reconstruction of illegal settlements in Gaza – a repeated policy and pattern of Zionist colonialism harking back to the Nakba in 1948, leaving as few Palestinians remaining on the land as possible.
This approach is one of idiosyncrasy, one for most victim groups and most suspects, yet a totally opposite approach when the victims are Palestinians and the suspects are Israeli. It makes Israel an exception to the rule of law and hints that Starmer views Palestinian life as not worthy enough to warrant protection from grievous violations, even as shocking images and videos of the horrors inflicted upon them fill our screens.
Continued political, diplomatic, economic, and military support for Israel renders our government complicit. This cannot be seen as anything other than a deliberate and conscious effort to shield Israel from accountability and legal consequences so as to maintain business as usual.
The government was recently forced to admit in court that it knows Israel has no commitment to compliance with international humanitarian law, and yet does only the bare minimum in response.
In capsizing the position of the UK on how it interprets the Genocide Convention, and doing so for the sole purpose of permitting continued inaction, this government is giving Israel total impunity and actively providing assistance to Israel’s genocide of the Palestinian people.
As such, this isn’t simply a case of passive inaction, but rather complicity at state level – a matter for which government ministers and officials should be put on notice that they will eventually be legally held to account.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
Gary Spedding is a writer, researcher, and campaigner with over 15 years of experience working with leading human rights organisations, key politicians, and various grassroots communities; he specialises in the Israel-Palestine conflict, Armenia and Northern Ireland
