246. The duty to prevent and punish genocide applies not only to the responsible State but to all States Parties to the Genocide Convention and indeed to all States under customary international law. In the Barcelona Traction case, the International Court of Justice recognised the erga omnes obligation in preventing and punishing genocide487 and held that the Genocide Convention obligates all States Parties to prevent and punish the crime of genocide.488 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 take steps to determine their own obligations in preventing and punishing such acts.

247. On 26 January 2024, in its first of three provisional measures orders in the South Africa v. Israel case, the International Court of Justice put all States on notice of the plausibility of the State of Israel committing genocide in its military operations in Gaza since 7 October 2023. The Court said, “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III [of the Genocide Convention].” It found “a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible”.

248. It noted, inter alia, the catastrophic living conditions in Gaza. On 24 May 2024, the Court reinforced its earlier order, saying that “the current situation arising from Israel’s military offensive in Rafah entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused before the Court gives its final decision.“ It ordered Israel to “immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”.492 The Commission emphasises the importance of these provisional measures orders in providing a strong statement to other States of their obligations to prevent and punish genocide.

249. Therefore, the Commission finds that, since at least 26 January 2024, when the International Court of Justice ordered its first provisional measures, all States Parties to the Genocide Convention, and all other States too, have been on notice of a serious risk that genocide was being or would be committed. As such, the duty to prevent genocide was triggered due to the actual or constructive knowledge of the immediate plausibility that genocide was being or was about to be committed. According to the International Court of Justice, where States Parties are able to contribute to the prevention of genocide, they are obligated to “employ all means reasonably available to them, so as to prevent genocide so far as possible.” Responsibility may be incurred if a State Party “manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.”

250. Consistent with the obligations promulgated under the Genocide Convention, the Commission therefore notes that States are obliged to (i) ensure that Israel implements all orders for provisional measures issued by the International Court of Justice; (ii) cooperate to bring to an end all Israeli actions in Gaza that amount to a violation of the Genocide Convention; (iii) take steps to ensure the prevention of conduct that may amount to an act of genocide under the Genocide Convention, including the transfer of weapons that are used or likely to be used by Israel to commit genocidal acts; (iv) not recognise as lawful the military operations in Gaza that led to the violations of peremptory norms (jus cogens), including genocide; and (v) conduct investigations and take steps to ensure the punishment of violations of peremptory norms. The Commission recommends that, in fulfilment of these obligations, States (i) intervene in the International Court of Justice proceedings of South Africa v. Israel; and (ii) support and cooperate fully with the Office of the Prosecutor of the International Criminal Court in its investigation into the situation in the State of Palestine, with the aim of advancing international accountability.