The UN Convention on Genocide and the Gaza War: Legal Responsibility in a Fractured International Order

As the situation in Gaza deteriorates, the invocation of the Genocide Convention has become not only a legal battle but deeply divisive politically. The 1948 UN Convention, which 153 nation states have signed up to or ratified, requires that all signatories commit to prevent and punish acts of genocide whether during a war or in peacetime. As the judicial organs of the UN, the International Court of Justice (ICJ) prosecutes states and the International Criminal Court (ICC) prosecutes individuals for serious international crimes, such as genocide.

Genocide is frequently conflated with the Holocaust, despite the Convention clearly delineating the potential methods of mass extermination and the goal and intentions of perpetrators. Definitional uncertainty creates a political window for manoeuvre, and in part explains the current reluctance to use the term and why so few explicit cases of genocide have been named. The obligations of states are clear,¹ however, and the maps show who has acted on their commitment to prevent and punish genocide and who has not or has remained silent.

In December 2023, South Africa filed a case against Israel at the ICJ in The Hague, under the 1948 Genocide Convention, based upon Israel’s militarized campaigns in Gaza in response to Hamas’s atrocities on 7 October 2023, claiming they constitute violations of international law.² However, the European response to the case and the conflict more broadly has been cautious or silent, owing to a myriad of different historic consciences and to US alignment, among other factors.

The Court’s first order on 26 January 2024 accepted it was plausible that Israel had breached the Genocide Convention, and was followed by three binding provisional measures, directing Israel to refrain from actions that could breach the Convention and to halt its military offensive. These rulings marked a significant moment in the legal dimension of the Gaza conflict. Several states then intervened in the proceedings: South Africa, Colombia, Bolivia and Ireland share a deep-rooted anti-colonial and anti-apartheid solidarity; Malaysia, Pakistan and the Organisation of Islamic Cooperation (OIC) are aligned by pan-Islamic or regional concerns.

In a parallel legal case in November 2024, the International Criminal Court issued arrest warrants for Benjamin Netanyahu, the prime minister of Israel, and Yoav Gallant, former Israeli minister of defence, for alleged war crimes and crimes against humanity in the Gaza Strip. Signatory states and those that ratified its founding Rome Statutes are obliged to cooperate and comply with the ICC,³ but enforcement is often a national political decision. As the map shows, there are far fewer signatories of the Rome Statutes than of the Genocide Conventions and only 125 of them have ratified. The US, Russia, China and Israel do not recognize the ICC’s authority.

Most European states have side-stepped the question of whether they would enforce such ICC arrest warrants; others have explicitly stated they would not comply. Netanyahu visited Hungary in April 2025, his first trip to an ICC member state since his arrest warrant was issued. This lack of a united European position is also evident in the ICC arrest warrant for Vladimir Putin, highlighting the tension between international legal commitments and geopolitical alliances, which ‘breeds a climate of impunity’ according to Human Rights Watch.⁴

The Court’s mandate is increasingly strained. The Netherlands, Ireland, Lithuania, Slovenia and Spain have stated they would enforce the ICC’s warrants, whereas France, Germany and Italy have expressed non-committal stances on compliance. Israel is not a party to the Rome Statutes. France justifies its stance on the basis that Israel didn’t ratify the treaty, despite the warrant being targeted at an individual.^{5 ]}So the question is: does the Court rule for humankind or for those who are citizens of these signatory states? Whereas in the case of Putin’s Russia, another non-signatory state, European states act according to a universalist reading, they hesitate to do so in the case of Israel.

Europe’s vocation in upholding international law is at a crossroads. Member states struggle to reconcile European values with both international law and their geopolitical reality as the post-1945 international order wanes. Meanwhile, a more assertive Global South leverages international courts to seek multilateral justice and exposes Western double standards. In a January 2025 example, a group of states called the Hague Group formed a coalition: Bolivia, Colombia, Cuba, Honduras, Malaysia, Namibia, Senegal and South Africa. Their aim is to use ‘coordinated legal, economic and diplomatic measures’ through both ICC and ICJ channels to build global solidarity with Palestine.⁶

As Raphael Lemkin, the father of the Genocide Convention, commented, ‘Genocide is so easy to commit because people don’t want to believe it until after it happens.’⁷ Europe's silence or equivocation in the face of such large-scale atrocities undermines its claims to moral authority and its commitment to the very international legal order it once helped to forge.