INTERNATIONAL COURT OF JUSTICE
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide in the Gaza Strip
(South Africa v. Israel)
DECLARATION OF INTERVENTION BY
THE REPUBLIC OF CHILE
12 September 2024
-i-
Table of Contents
Declaration of Intervention by the Republic of Chile ............................................... 1
I. Case and convention to which the Declaration relates ........................................... 1
II. Chile is a Party to the Convention on the Prevention and Punishment of the
Crime of Genocide.................................................................................................. 2
III. The particular provisions of the Convention whose construction is in question
and Chile’s statement on their interpretation .......................................................... 3
A. Construction of Article IX – Jurisdictional clause .................................................. 3
B. Construction of Article II – The definition of genocide ......................................... 6
C. Construction of Article I – Duty to prevent genocide ............................................. 9
D. Construction of Articles I and VI – Duty to punish .............................................. 13
E. Construction of Articles III, IV, V, and VI – Direct and public incitement to
commit genocide ........................................................................................................ 16
F. Conclusion .................................................................................................................. 20
IV. Documents in support of the declaration .............................................................. 21
V. Appointment of Agents ........................................................................................ 21
- 1 -
DECLARATION OF INTERVENTION BY
THE REPUBLIC OF CHILE
1. The Government of the Republic of Chile (hereinafter “Chile”), has the honour to
submit to the International Court of Justice a declaration of intervention pursuant to
Article 63 of the Statute of the Court, in the case concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel).
2. Under Article 82 of the Rules of the Court, a Declaration of Intervention submitted
pursuant to Article 63 of the Court’s Statute shall state the name of an agent, specify
the case and the convention to which it relates, and “shall contain:
(a) particulars of the basis on which the declarant State considers itself a party to
the convention;
(b) identification of the particular provisions of the convention the construction
of which it considers to be in question;
(c) a statement of the construction of those provisions for which it contends;
(d) a list of the documents in support, which documents shall be attached.”
3. The aforementioned elements are addressed below, in turn.
I. CASE AND CONVENTION TO WHICH THE DECLARATION RELATES
4. On 29 December 2023, the Republic of South Africa (hereinafter “South Africa”)
filed before the Court an application instituting proceedings against the State of Israel
(hereinafter “Israel”) concerning alleged violations of its obligations under Articles I,
III, IV, V and VI of the Convention on the Prevention and Punishment of the Crime
of Genocide of 9 December 1948 (hereinafter the “Genocide Convention” or the
“Convention”) in relation to Palestinians in Gaza, basing the Court’s jurisdiction on
the compromissory clause contained in Article IX of the Convention and on Article
36, paragraph 1, of the Statute of the Court.
5. In the same application, South Africa also requested the Court to indicate provisional
measures.
- 2 -
6. After having heard both parties on the matter, on 26 January 2024, the Court issued
an order on provisional measures. The Court found that it had prima facie jurisdiction
because, at that stage, the Parties appeared “to hold clearly opposite views as to
whether certain acts or omissions allegedly committed by Israel in Gaza amount to
violations by the latter of its obligations under the Genocide Convention”,1 and in
“the Court’s view, at least some of the acts and omissions alleged by South Africa to
have been committed by Israel in Gaza appear to be capable of falling within the
provisions of the Convention”.2
7. The Court also found that there was a link between some of the requested measures
and the rights asserted by South Africa under the Genocide Convention, which the
Court concluded were plausible. Finally, the Court considered that there was “a real
and imminent risk that irreparable prejudice will be caused to the rights found by the
Court to be plausible, before it gives its final decision”.3 It thus indicated several
provisional measures.
8. Since then, at South Africa’s request, the Court has further issued additional
provisional measures, on two different occasions,4 due to the fact that previous
provisional measures did not fully address the consequences arising from new
developments, which are exceptionally grave.
II. CHILE IS A PARTY TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
9. Chile has been a party to the Genocide Convention since 3 June 1953, when it
deposited its instrument of ratification with the Secretary-General of the United
Nations in accordance with the provisions of Article XI of the Convention.
Accordingly, the Convention entered into force for Chile on 1 September 1953. Chile
did not formulate any reservations and remains a party to the Convention.
1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, at p. 11, para. 28.
2 Ibid., at p. 12, para. 30.
3 Ibid., at p. 22, para. 74.
4 Through Orders of 28 March 2024 and 24 May 2024.
- 3 -
III. THE PARTICULAR PROVISIONS OF THE CONVENTION WHOSE CONSTRUCTION IS IN
QUESTION AND CHILE’S STATEMENT ON THEIR INTERPRETATION
10. Chile considers that the provisions of the Genocide Convention whose construction
is in question in the present case are Articles I, II, III, IV, V, VI and IX.
A. Construction of Article IX – Jurisdictional clause
11. As aforementioned, South Africa based the jurisdiction of the Court on Article 36,
paragraph 1, of the Statute of the Court and Article IX of the Genocide Convention.
12. Article IX of the Genocide Convention makes the Court’s jurisdiction conditional on
the existence of a dispute relating to the interpretation, application, or fulfilment of
the Convention.
13. Israel has already anticipated that it contends the assertion that a dispute existed
between both Parties before the filing of the proceedings. During its oral pleadings
concerning South Africa’s first request of provisional measures, Israel argued that
there were no bilateral interactions between the two States, that South Africa’s
unilateral assertions did not suffice to establish the existence of a dispute, and that it
was not provided with a reasonable opportunity to respond to the allegations of
genocide.5
14. Hence, in Chile’s view, the construction of Article IX of the Genocide Convention is
in question in the present case. Chile’s statement regarding the construction of this
provision will address two points. First, the meaning of “dispute” in Article IX of the
Genocide Convention, and second, the erga omnes character of the obligations in the
Convention.
15. Regarding the first point, under Article 31 of the Vienna Convention on the Law of
Treaties, the term “dispute” shall be interpreted in accordance with its ordinary
meaning under international law. In this regard, the Court’s well-established case law
has determined that a dispute is “a disagreement on a point of law or fact, a conflict
5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v Israel), Verbatim Record of 12 January 2024, at pp. 25-28.
- 4 -
of legal views or of interest” between parties.6 In order for a dispute to exist, “[i]t
must be shown that the claim of one party is positively opposed by the other”.7 The
two sides must “hold clearly opposite views concerning the question of the
performance or non-performance of certain international obligations”.8
16. In principle, the relevant date in which a dispute needs to be in existence is the date
of the filing of the application.9 On that date, what must be demonstrated is that “the
respondent was aware, or could not have been unaware, that its views were positively
opposed by the applicant”.10 However, the conduct of the Parties subsequent to the
application may also be relevant to confirm the existence of a dispute.11
17. In making such determination, the Court must take into account, in particular, any
statements or documents exchanged between the parties,12 as well as any exchanges
made in multilateral settings.13 Furthermore, the Court must pay special attention “to
the content of a party’s statement and to the identity of the intended addressees, in
6 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
7 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 328.
8 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016
(I), p. 270, para. 34; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50.
9 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 27, para. 52.
10 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016
(I), p. 271, para. 38; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 32, para. 73;
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 100, para.
63; and Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Preliminary Objections, Judgment, 2024, p. 33, para. 45.
11 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016
(I), p. 272, para. 40; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022, p. 477, para.
64.
12 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports
2022 (I), pp. 220-221, para. 35.
13 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 94-95,
paras. 51 and 53.
13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v Israel), Order of 26 January 2024, paras. 28.
- 5 -
order to determine whether that statement, together with any reaction thereto, show
that the parties before it held clearly opposite views”.14
18. For a declaration made in a multilateral setting to be considered as evidence of a
dispute, it shall not be made in hortatory terms15 and it “must refer to the subjectmatter
of the treaty with sufficient clarity to enable the State against which a claim is
made to identify that there is, or may be, a dispute with regard to that subjectmatter”.
16
19. The amount of time in which a statement is issued before the institution of
proceedings is not relevant, as long as it is clear that the respondent knew at that time
that its views were positively opposed by the applicant.17
20. Lastly, regarding the second point on the construction of Article IX, Chile would like
to note that since the obligations arising from the Genocide Convention have an erga
omnes partes character, in the sense that each State party has an interest in compliance
with them in any given case,18 any State party to the Convention, without distinction,
is entitled to invoke the responsibility of another State party for an alleged breach of
its obligations, without the need to demonstrate a special interest.19
14 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016,
p. 255, at p. 273, para. 45. See also, Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022,
p. 477, at p. 29, para. 64.
15 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016,
p. 255, at p. 274, para. 46.
16 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para.
30; and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022, p. 477, at p. 32, para. 72.
17 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Preliminary Objections, Judgment, 2024, p. 35, para. 50.
18 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012 (II), p. 449, para. 68; see also Barcelona Traction, Light and Power Company, Limited (New
Application: 1962) (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.
19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia
v.
Myanmar), Preliminary Objections, Judgment, ICJ, 22 July 2022, para. 108-109.
- 6 -
B. Construction of Article II – The definition of genocide
21. The definition of genocide enshrined in Article II of the Genocide Convention is
premised on two core elements: a prohibited conduct or actus reus, comprised by a
series of acts enumerated in Article II, and the intent on the part of the perpetrator to
destroy a protected group in whole or in part, or mens rea. This subjective element is
genocide’s essential characteristic, which distinguishes it from other serious crimes
under international law.20
22. With regard to Article II of the Convention, Chile would like to focus on two specific
legal issues that are in question in the present case. First, the protected groups which
fall within the scope of protection of the Genocide Convention, and second, the
genocidal intent.
23. In relation to the first issue, pursuant to Article II of the Convention, the genocidal
intent must be directed against a group with particular positive characteristics,
namely, a distinct collection of people who have a specific group identity21 —
national, ethnical, racial, or religious— “as such”. By requiring the destruction of a
group “as such” the Convention clarifies that the victim is targeted not because of
their individual identity, but rather due to their membership in a protected group.
Hence, the victim of the crime of genocide is both the group itself as well as the
individual.22 This is what makes genocide an exceptionally grave crime and
distinguishes it from other serious crimes.23
24. Furthermore, and as previously noted by the Court, the drafting history of the
Convention confirms that the protected groups must be defined in a positive way,
encompassing groups “with specific distinguishing well-established, some said
immutable, characteristics. A negatively defined group cannot be seen in that way”.24
20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J., 3 February 2015, para. 132.
21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 219, para. 193.
22 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, para. 521.
23 ICTY, Trial Chamber, Prosecutor v. Radovan Karadžić, IT-95-5/18-T, Judgement, 24 March 2016, para
551.
24 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 219, para. 194.
- 7 -
25. To determine whether a victim is a member of a protected group under the Genocide
Convention, a number of factors must be taken into account, including the exercise of
a particular religion, the commonly shared language or culture, and the socio-historic
context in which the group inhabits.25 Additionally, the victims’ self-identification
might also be relevant to establish the existence of a protected group,26 considering
that membership in a group is, essentially, a subjective rather than an objective
concept.27
26. On this point, Chile notes the Court’s preliminary finding that the Palestinians “appear
to constitute a distinct national, ethnical, racial or religious group” under the Genocide
Convention.28 Chile also notes the Court’s recent Advisory Opinion on the Legal
Consequences arising from the Policies and Practices of Israel in the Occupied
Palestinian Territory, including East Jerusalem of 19 July 2024, in which the Court
found that the regime of comprehensive restrictions imposed by Israel on Palestinians
in the Occupied Palestinian Territory “constitutes systematic discrimination based on,
inter alia, race, religion or ethnic origin”.29
27. In addition, the Genocide Convention also provides protection for parts of a group.
However, when assessing a genocidal intent directed towards a part of a group, that
part must be substantial.30 This does not require a specific numeric threshold to be
reached; it is enough to consider the potential effect of the intended destruction of that
section on the group as a whole.31 In this sense, the prominence of the allegedly
targeted part within the group as a whole is relevant, considering its importance to the
broader community.32 Similarly, an intent to destroy a part of a group within a
25 ICTY, Trial Chamber, Prosecutor v. Radislav Krstić, IT-98-33-T, Judgement, 02 August 2001, para 557.
26 Ibid., para 559.
27 ICTR, Trial Chamber I, The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T,
Judgment and Sentence, 6 December 1999, para. 56.
28 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, at p. 15, para. 45.
29 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian
Territory, including East Jerusalem, Advisory Opinion of 19 July 2024, p. 64, para. 223.
30 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 219, para. 198.
31 Ibid.
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 3, at p. 65, para. 142.
- 8 -
geographically limited region is generally sufficient, and it is not necessary to intend
to achieve the complete annihilation of a group from every corner of the globe.33
28. Regarding the second issue, Chile notes that the jurisprudence of the Court has made
clear that genocide requires the specific intent to destroy —physically or
biologically— 34, in whole or in part, the protected group as such.
29. Chile acknowledges that this element presents significant evidential challenges, since
external manifestations of intent might be particularly difficult to obtain or detect. In
fact, because of its nature, genocidal intent is not usually susceptible of direct proof.
However, the lack of direct evidence is not necessarily an impediment to a finding of
genocide.
30. Indeed, this specific intent may be inferred from a number of facts and circumstances,
“such as the general context, the perpetration of other culpable acts systematically
directed against the same group, the scale of atrocities committed, the systematic
targeting of victims on account of their membership in a particular group, the
repetition of destructive and discriminatory acts, or the existence of a plan or
policy”.35 Similarly, the Court has noted that a pattern of conduct can be accepted as
evidence if the intent to destroy is the only reasonable inference that can be drawn
from said pattern.36
31. Other elements that might also be relevant to provide indications of the perpetrator’s
state of mind are statements and utterances of the accused;37 orders to commit crimes
or inciting and encouraging words intended to lead to the commission of crimes;38
33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 219, para. 199.
34 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 3, at pp. 62-63, paras. 134-136.
35 ICTY, Appeals Chamber, Prosecutor v. Zdravko Tolimir, IT-05-88/2-A, Judgment, 8 April 2015, para.
246.
36 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 3, at p. 122, para. 417; and Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007, p. 43, at pp. 196-197, para. 373.
37 ICTR, Appeals Chamber, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-A, Judgment, 28 November 2007, para. 567.
38 ICTR, Trial Chamber III, The Prosecutor v. Siméon Nchamihigo, ICTR-01-63-T, Judgement and
Sentence, 12 November 2008, para. 333-335.
- 9 -
implied calls to kill members of the targeted group;39 the use of derogatory language
to describe the targeted group or its members, among others.40
32. Consequently, to determine whether the perpetrator meets the mens rea requirement,
the Court must conduct a holistic analysis of evidence, considering the overall factual
picture within the context in which the acts occurred, and the pattern of conduct of
the accused. Assessing all evidence, taken together, is an approach that aligns with
the fluid concept of intent.41
33. Lastly, it is essential to note that the Genocide Convention does not require that the
intent to destroy a group (in whole or in part) be the sole or primary purpose of the
perpetrator.42 Genocide’s special intent must be distinguished from the reasons or
motivations which may have caused the accused to act.43 Indeed, members of a
protected group could be targeted for their nationality, ethnicity, race, and/or religion,
in addition to other reasons. Therefore, evidence of further motives —personal,
political, or linked to military advantage— will not preclude a finding of genocide if
such special intent is otherwise established.44
C. Construction of Article I – Duty to prevent genocide
34. Article I of the Genocide Convention, establishes a general duty to prevent and to
punish acts of genocide.
35. The duty to prevent, albeit directly linked with the duty to punish, constitutes a distinct
obligation,45 with its own scope, that compels all State parties to the Convention to
39 ICTR, Appeals Chamber, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-A, Judgment, 28 November 2007, paras. 568-569.
40 ICTY, Appeals Chamber, Prosecutor v. Zdravko Tolimir, IT-05-88/2-A, Judgment, 8 April 2015, paras.
573-576.
41 Ibid, para. 247.
42 ICTR, Appeals Chamber, The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, ICTR-
96-10-A & ICTR-96-17-A, 13 December 2004, para. 304.
43 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 219, para. 189.
44 UN Security Council, Final Report of the Commission of Experts established pursuant to Security
Council Resolution 935 (1994), UN Doc. S/1994/1405, 9 December 1994, para. 159.
45 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 219, para. 425.
- 10 -
“take such action as they can to prevent genocide from occurring”46 but also any acts
punishable under the Convention, such as those enumerated within Article III.
36. The Court has previously stated that the duty to prevent is a due diligence obligation47
of an erga omnes character, that is not territorially limited.48 Due diligence obligations
entail the adoption of appropriate rules and measures, a certain level of vigilance in
their enforcement and the exercise of administrative control applicable to public and
private operators.49 The standard of due diligence will vary depending on the
circumstances, however, it is clear that the more serious the risk, the more severe the
applicable standard.50
37. In the case of the duty to prevent genocide under Article I of the Convention, to
determine whether this standard has been met, the Court will need to asses, amongst
others, the State’s capacity to influence effectively the action of persons likely to
commit, or already committing, genocide, including geographical distance from the
scene of the events, the strength of the political links with the main actors, and its
legal position regarding the endangered population.51 Thus, if after having considered
the aforementioned parameters the Court finds that the “State manifestly failed to take
all measures to prevent genocide which were within its power”, then the duty of
prevention will be deemed to have been breached. 52
38. For these purposes, “it is irrelevant whether the State whose responsibility is in issue
claims, or even proves, that even if it had employed all means reasonably at its
disposal, they would not have sufficed to prevent the commission of genocide”.53
46 Ibid., at p. 220, para. 428.
47 Ibid., at p. 221, para. 430.
48 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996, p. 595, at p. 616.
49 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14, at p. 79,
para. 197.
50 International Tribunal for the Law of the Sea, Request for an advisory opinion submitted by the
commission of small island states on climate change and international law, Advisory Opinion, 2024 at p.
86, para. 239.
51 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 221, para. 430.
52 Ibid.
53 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 221, para. 430.
- 11 -
What is important is that the State had the means to do so, but it manifestly refrained
from using them.54
39. Lastly, it is important to note that even if the obligation to prevent genocide is only
breached if genocide was actually committed, the obligation to prevent genocide
arises in that case “at the moment in which the State learns of, or should normally
have learned of, the existence of a serious risk that genocide will be committed.”55
40. Certainty that genocide or any of the other punishable acts under the Convention are
about to be committed is not necessary, rather awareness of the serious danger that
those acts would be committed suffices.56 Hence, from that moment onwards, any
failure to adopt and implement suitable measures to prevent genocide or any related
acts from being committed would entail the State’s responsibility.57
41. The Court has previously found that the rendering of an order indicating provisional
measures, even if not a definitive finding on the merits, could be indicative of the
influence a State might exercise over the actors, 58 and Chile proposes it could also be
indicative of its awareness that a serious risk might be committed.
42. In the case at hand, the Court has issued three different orders indicating provisional
measures, having found that the facts and circumstances presented by South Africa
“are sufficient to conclude that 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”.59
43. In particular, the Court has found a serious risk that these acts might be committed
based on “certain statements by Israeli State officials, including members of its
military”,60 in the deteriorating catastrophic humanitarian situation in the Gaza Strip
54 Ibid., at p. 225, para. 438.
55 Ibid., at pp. 221-222 para. 431.
56 Ibid., p. 43, at pp. 222-223, para. 432.
57 Ibid., at pp. 222-223, para. 432.
58 Ibid., at pp. 223-224, para. 435.
59 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 54.
60 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, Declaration of Judge Nolte,
para. 15.
- 12 -
due to the famine and starvation that has been setting in,61 and due to the “military
offensive in Rafah and the resulting repeated large-scale displacement of the already
extremely vulnerable Palestinian population in the Gaza Strip.”62
44. Furthermore, the provisional measures that were indicated, show the potential
influence Israel can exercise over the situation in Gaza. In particular, the Court has
thus far ordered Israel, amongst others, to (i) take all measures within its power to
prevent the commission of all acts that would constitute genocide, and ensure that its
military does not commit any of those acts; (ii) take all measures within its power to
prevent and punish the direct and public incitement to commit genocide in relation to
members of the Palestinian group in the Gaza,63 (iii) take all necessary and effective
measures to ensure, without delay, the unhindered provision at scale by all concerned
of urgently needed basic services and humanitarian assistance, and ensure that its
military does not prevent this provision,64 and (iv) 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”, while also ensuring the unimpeded access to the Gaza
Strip of any investigative body mandated by competent organs of the United Nations
to investigate allegations of genocide.65
45. After the issuance of the provisional measures, and considering the Court’s finding
that the right of the Palestinians in Gaza to be protected from acts of genocide was
plausible, Israel cannot claim that it was not aware of the existence of this risk.
46. Likewise, the availability of other information raising serious concerns about the
likelihood of the commissions of acts of genocide or other acts punishable by the
Convention, is also revealing of a State’s awareness of this risk.66
61 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024.
62 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 24 May 2024.
63Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024.
64 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024.
65 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 24 May 2024.
66 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 225, para. 438.
- 13 -
D. Construction of Articles I and VI – Duty to punish
47. The duty to punish, enshrined in Articles I and VI of the Convention, imposes an
obligation on State parties to prosecute and try before a competent tribunal any person
charged with genocide or any of the other acts enumerated in Article III.
48. This duty arises even if the State is found to have incurred in responsibility for acts
of genocide or any other acts enumerated in Article III, since “these are two distinct
internationally wrongful acts attributable to the State, and both can be asserted against
it as bases for its international responsibility.”67
49. In the Bosnian Genocide case the Court declared that the obligation to prosecute
imposed by Article VI is subject to an express territorial limit,68 stating that “Article
VI only obliges the Contracting Parties to institute and exercise territorial criminal
jurisdiction”.69 However, because of the specific circumstances of that case, in which
the acts of genocide were committed in Bosnian territory by an entity not considered
to be a State organ, nor under the effective control of the Respondent, the Court did
not have the opportunity to determine whether the obligation to punish genocide and
its related acts is confined solely to those territories over which a State has
sovereignty, or whether it also extends to those territories over which it exercises
jurisdiction or effective control.70
50. In particular, and relevant to the present case, the Court would need to determine
whether Israel has a duty to punish acts of genocide or other related acts committed
within Gaza, considering its recent finding that Gaza remains an occupied territory
even after the withdrawal of Israeli military presence in 2005, and especially since 7
October 2023.71 For this purpose, in interpreting the duty under Article VI, the Court
would need to consider the law of occupation under international humanitarian law.
51. Chile is aware that an intervention under Article 63 of the Court’s Statute must only
relate to the construction of provisions of the relevant Convention. However, the
67 Ibid., at p. 201, para. 383.
68 Ibid., at p. 120, para. 184.
69 Ibid., at pp. 226-227, para. 442.
70 Marko Milanovic, Territorial Application of the Genocide Convention and State Succession in The UN
GENOCIDE CONVENTION: A COMMENTARY (Paola Gaeta, ed.) (OUP, 2009), at p.481.
71 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian
Territory, including East Jerusalem, Advisory Opinion of 19 July 2024, pp. 30-31, paras. 93-94.
- 14 -
Court has declared that references to other rules and principles of international law
outside the Genocide Convention would be taken into account in so far as they may
be relevant for the construction of the Convention’s provisions, in accordance with
the customary rules of treaty interpretation reflected in the Vienna Convention on the
Law of Treaties, in particular Article 31, paragraph 3 (c).72
52. Under customary international law as reflected in Article 42 of the Regulations
Respecting the Laws and Customs of War on Land annexed to the Fourth Hague
Convention of 18 October 1907 (hereinafter “the Hague Regulations of 1907”),
territory is considered occupied when it is actually placed under the authority of the
hostile army, and the occupation extends only to the territory where such authority
has been established and can be exercised.73 In other words, a “State occupies territory
that is not its own when, and to the extent that, it exercises effective control over it.”74
53. In this regard, considering that Gaza is currently under the occupation of Israel in the
context of an ongoing armed conflict,75 in determining whether Article VI includes
an obligation to punish acts committed in Gaza, any relevant rules of the law of
occupation shall be taken into account, together with the context.
54. Pursuant to Article 43 of the Hague Regulations of 1907, in an occupied territory, the
authority of the legitimate power passes into the hands of the occupant, who has a
duty to take all the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country.76 Hence, in a situation of occupation, the temporary holder of
authority is the Occupying Power.
72 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Declarations of Intervention, Order of 5 June 2023, para. 84;
and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Declarations of Intervention, Order of 3 July 2024, para. 45.
73 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 136, at p. 167, para. 78; Legal Consequences arising from the Policies and
Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion of
19 July 2024, at p. 28, para. 86 and p. 30, para. 92.
74 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian
Territory, including East Jerusalem, Advisory Opinion of 19 July 2024, at p. 30, para. 90.
75 Ibid., para. 93.
76 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning
the Laws and Customs of War on Land. The Hague, 18 October 1907.
- 15 -
55. This is further confirmed by Article 64 of the Fourth Geneva Convention relative to
the protection of civilian persons in time of war, that authorizes the Occupying Power
to subject the population of the occupied territory to provisions which are essential to
enable the Occupying Power to fulfil its obligations.77 Indeed, the authoritative
commentary to the Convention by the International Committee of the Red Cross,
explains that these powers are necessary to ensure an effective administration of
justice, since the Occupying Power, as the temporary holder of legal power, would
need to assume responsibility for penal jurisdiction in cases where local courts are
unable to function properly.78
56. In this regard, while it is true that in an occupation the tribunals of the occupied
territory shall, in principle, continue to function; in situations where that is not
possible, it falls unto the Occupying Power to exercise relevant penal jurisdiction.
This would certainly include the prosecution and punishment of persons charged with
acts of genocide or other related acts committed in the occupied territory.
57. In fact, the exercise of criminal jurisdiction to punish genocide and related crimes is
essential to enable Israel, as an occupying power, to fulfil its obligations under the
Fourth Geneva Convention. Furthermore, as recently put by the Court “[i]t is the
effective control of a territory, regardless of its legal status under international law,
which determines the basis of the responsibility of a State for its acts affecting the
population of the territory or other States.”79
58. Thus, in light of the purely humanitarian and civilizing purpose of the Convention, it
follows that the duty to punish is applicable not only to sovereign territory, but also
to territories under the jurisdiction or effective control of a State, including occupied
territories. A conclusion to the contrary would lead to intolerable situations of
impunity where a State charged with the main responsibility of protecting a
population because of its control over the territory, would be exempted from
77 Fourth Geneva Convention relative to the protection of civilian persons in time of war of 12 August 1949,
Art. 64(2).
78 ICRC, Commentary on Convention (IV) relative to the Protection of Civilian Persons in Time of War.
Geneva, 12 August 1949, Article Art. 64 (1958).
79 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian
Territory, including East Jerusalem, Advisory Opinion of 19 July 2024, at p. 72, para. 264.
- 16 -
punishing any acts of genocide committed in that territory, even if such acts were
committed by its own forces.
E. Construction of Articles III, IV, V, and VI – Direct and public incitement to
commit genocide
59. As a final point, Chile would like to refer to public incitement to commit genocide,
enshrined in Article III of the Genocide Convention.
60. Direct and public incitement to commit genocide is an autonomous crime under
international law,80 punishable as such, even if it fails to produce the result expected
by the perpetrator,81 if there is no causal relationship between the speech and the
subsequent acts,82 and if no act of genocide has resulted therefrom.83
61. Thus, in order to assert whether direct and public incitement to commit genocide has
taken place in the present case —as claimed by South Africa—, the Court must focus
not on the effects of the speeches or appeals but on their content. As noted by the
International Criminal Tribunal for Rwanda, “[i]t is the potential of the
communication to cause genocide that makes it incitement”.84 Direct and public
incitement is punishable because it carries a significant risk for society, even if it fails
to produce any results.85
62. On its examination, the Court should bear in mind that direct and public incitement to
commit genocide must be distinguished from hate speech or any other appeal for
violence or discrimination,86 and that the actus reus of this crime under the Genocide
80 ICTR, Appeals Chamber, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-A, Judgment, 28 November 2007, para. 678.
81 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, para. 562.
82 ICTR, Trial Chamber I, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-T, Judgment and Sentence, 3 December 2003, para. 1015.
83 ICTR, Appeals Chamber, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-A, Judgment, 28 November 2007, para. 678; Prosecutor v. Nyiramasuhuko et al., Case
No. ICTR-98-42-A, Judgment, 14 December 2015, para. 2677.
84 ICTR, Trial Chamber I, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-T, Judgment and Sentence, 3 December 2003, para. 1015.
85 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, para. 562.
86 ICTR, Appeals Chamber, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-A, Judgment, 28 November 2007, para. 692.
- 17 -
Convention requires that incitement fulfils two characteristics: directness and
publicity.
63. An incitement is direct if it incorporates “a call for criminal action”.87 In the present
case, the Court should give particular weight to the content of appeals by some Israeli
high-level public officials, who have made calls to kill all individuals living in Gaza
(e.g., “the Gaza Strip should be flattened, and for all of them there is but one sentence,
and that is death”88); or to ignore the civilian status of individuals living in Gaza (e.g.,
“we have to wipe the Gaza Strip off the map… There are no innocents there”89; “there
is no such thing as uninvolved civilians in Gaza”90; “when we say that Hamas should
be destroyed, it also means those who celebrate, those who support, and those who
hand out candy — they’re all terrorists, and they should also be destroyed”91).
Although it is not necessary for these appeals to have actually produced effects (due
to the autonomous nature of the crime), the fact that they influenced the conduct of a
third party may be a means to establish its direct character.92 Thus, the Court might
consider to what extent these calls seem to have resonated within Israeli soldiers.93
64. The directness must also be examined in the light of the cultural and linguistic content.
As noted by the International Criminal Tribunal for Rwanda, “a particular speech may
be perceived as ‘direct’ in one country, and not so in another, depending on the
87 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, para. 556.
88 Yitzhak Kroizer, Member of the Knesset. See, The Guardian ‘Israeli public figures accuse judiciary of
ignoring incitement to genocide in Gaza’ (3 January 2024)
https://www.theguardian.com/world/2024/jan/03/israeli-public-figures-accuse-judiciary-of-ignoringincitement-
to-genocide-in-gaza, accessed 6 July 2024.
89 Yitzhak Kroizer, Member of the Knesset. See, Haaretz, ‘Editorial | Fire Israel's Far Right’ (6 November
2023) https://www.haaretz.com/opinion/editorial/2023-11-06/ty-article/.premium/fire-israels-farright/
0000018b-a11c-dc0b-a1cb-e5de69890000, accessed 6 July 2024.
90 Amihai Ben-Eliyahu, Minister of Heritage. See, The Times of Israel, ‘Far-right minister says nuking
Gaza an option, PM suspends him from cabinet meetings’ (5 November 2023)
https://www.timesofisrael.com/far-right-minister-says-nuking-gaza-an-option-pm-suspends-him-fromcabinet-
meetings/, accessed 6 July 2024.
91 Itamar Ben-Gvir, Minister of National Security. See, The Times of Israel ‘«We should be worried»: Israel
faces peril at The Hague in Gaza «genocide» case’ (10 January 2024) https://www.timesofisrael.com/weshould-
be-worried-israel-faces-peril-at-the-hague-in-gaza-genocide-case/, accessed 6 July 2024.
92 ICTR, Appeals Chamber, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan
Ngeze, ICTR-99-52-A, Judgment, 28 November 2007, footnote 1674.
93 See, leaked video of soldiers singing “Gaza we have come to conquer. … We know our slogan – there
are no people who are uninvolved.” See The Telegraph, ‘Israeli troops filmed setting fire to food supplies
in Gaza’ (13 December 2023) https://www.telegraph.co.uk/world-news/2023/12/13/israel-defense-forcessoldiers-
gaza-viral-videos-food-fire/, accessed 6 July 2024.
- 18 -
audience”.94 Thus, although vague or indirect suggestions will not be sufficient,95 an
implicit call may also amount to direct and public incitement to commit genocide, as
long as the persons for whom the message was intended grasped the implications
thereof.96
65. On this point, it is important to assess the public appeals made by different Israeli
authorities −including the Prime Minister−, with references to biblical passages and
the people of Amalek (“The memory of Amalek must be erased”97; “You must
remember what Amalek has done to you”98). The Court should consider the cultural
meaning of Amalek, and whether it might be understood in the Jewish culture as a
call for the commission of crimes against Gazans, including children and babies.99
66. Language of dehumanization may also be relevant for assessing if a speech amounts
to direct and public incitement to commit genocide. In the Rwandan Genocide, Tutsis
were often described as “cockroaches” (Inyenzi) by the perpetrators.100 Similarly, the
International Criminal Tribunal for the former Yugoslavia found that the existence of
derogatory language was relevant to support findings on genocide.101 Thus,
dehumanizing appeals concerning Gazans, especially those coming from high-level
94 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, para. 557.
95 Ibid., para. 562; ICTR, Appeals Chamber, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco
Barayagwiza, Hassan Ngeze, ICTR-99-52-A, Judgment, 28 November 2007, para. 692.
96 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, paras. 557-558.
97 Boaz Bismuth, Member of the Knesset. See, The Guardian ‘Israeli public figures accuse judiciary of
ignoring incitement to genocide in Gaza’ (3 January 2024)
https://www.theguardian.com/world/2024/jan/03/israeli-public-figures-accuse-judiciary-of-ignoringincitement-
to-genocide-in-gaza, accessed 6 July 2024.
98 Prime Minister Benjamin Netanyahu. See, NPR ‘Netanyahu's references to violent biblical passages raise
alarm among critics’ (7 November 2023) https://www.npr.org/2023/11/07/1211133201/netanyahusreferences-
to-violent-biblical-passages-raise-alarm-among-critics, accessed 6 July 2024.
99 Deuteronomy 25:17-19: “Remember what the Amalekites did to you on the journey after you left Egypt.
They met you along the way and attacked all your stragglers from behind when you were tired and weary.
They did not fear God. When the Lord your God gives you rest from all the enemies around you in the land
the Lord your God is giving you to possess as an inheritance, blot out the memory of Amalek under heaven.
Do not forget”. See also 1 Samuel 15:1-3: “Samuel told Saul, The Lord sent me to anoint you as king over
his people Israel. Now, listen to the words of the Lord. This is what the Lord of Armies says: ‘I witnessed
what the Amalekites did to the Israelites when they opposed them along the way as they were coming out
of Egypt. Now go and attack the Amalekites and completely destroy everything they have. Do not spare
them. Kill men and women, infants and nursing babies, oxen and sheep, camels and donkeys.’” (Christian
Standard Bible, the emphases are added).
100 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, paras. 90, 148; ICTR, Trial Chamber I, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco
Barayagwiza, Hassan Ngeze, ICTR-99-52-T, Judgment and Sentence, 3 December 2003, para. 187.
101 ICTY, Appeals Chamber, Prosecutor v. Zdravko Tolimir, IT-05-88/2-A, Judgment, 8 April 2015, paras.
573-576.
- 19 -
authorities (“we are fighting human animals”102; “human animals must be treated as
such”;103 “we are the people of the light, they are the people of darkness”104) bear
special relevance.
67. Incitement must also be public, which requires considering both the place where the
incitement occurred and the audience. An incitement is public if made to a number of
individuals in a public place or to members of the general public at large —such as
incitement made using mass media—.105 However, it must be noted that incitement
can take place not only through oral appeals but also through written material
disseminated in public places, public display of placards or posters, or any other
means of audio-visual communication.106
68. Direct and public incitement to commit genocide requires that the individual must
have acted with the intent to directly prompt another to commit genocide.107 On this
point, Chile refers to the statements made above on the means at the disposal of the
Court to infer this intent.
69. Finally, as detailed in the previous section, Chile would like to point out that under
Article IV of the Genocide Convention, State Parties have an obligation to punish all
individuals responsible for direct and public incitement to commit genocide,
including constitutionally responsible rulers, public officials, and private individuals.
This entails, as further developed in Article VI of the Convention, an obligation to try
individuals charged with direct and public incitement to commit genocide by a
102 Yoav Gallant, Minister of Defence. See, The Times of Israel, ‘Defense minister announces «complete
siege» of Gaza: No power, food or fuel’ (9 October 2023)
https://www.timesofisrael.com/liveblog_entry/defense-minister-announces-complete-siege-of-gaza-nopower-
food-or-fuel/, accessed 6 July 2024.
103 Major General Ghassan Alian, Coordinator of Government Activities in the Territories. See, The Times
of Israel, ‘COGAT chief addresses Gazans: «You wanted hell, you will get hell» (10 October 2023)
https://www.timesofisrael.com/liveblog_entry/cogat-chief-addresses-gazans-you-wanted-hell-you-willget-
hell/, accessed 6 July 2024.
104 Prime Minister Benjamin Netanyahu. See X @i24NEWS_EN (25 October 2023)
https://twitter.com/i24NEWS_EN/status/1717233758003171833, accessed 6 July 2024.
105 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, para. 556. See also, ICTR, Trial Chamber I, The Prosecutor v. Eliézer Niyitegeka, ICTR-96-14-T,
Judgement and Sentence, 16 May 2003, para. 431.
106 ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, 2 September
1998, para. 559.
107 Ibid., para. 560.
- 20 -
competent tribunal of the State in the territory of which the act —in this case, the acts
of direct and public incitement to commit genocide— was committed.
70. In this regard, the Court may consider whether the public appeals that could amount
to direct and public incitement to commit genocide have been subject to criminal
proceedings, and/or whether officials responsible for these calls remain in office. This
is particularly relevant in the present case, considering that the Court reinforced
Israel’s special duty to prevent and punish direct and public incitement to commit
genocide in relation to members of the Palestinian group in the Gaza Strip by its
provisional measures Order of 26 January 2024.108
71. In any case, the focus on some appeals by high-level authorities should not obscure
the fact that State Parties’ obligations under Articles IV and VI of the Convention
have an even wider scope, and encompass actions that may amount to direct and
public incitement to commit genocide, even if committed by private individuals, for
whose conduct the State is not responsible.
F. Conclusion
72. Since its adoption, it has been manifestly clear that the Genocide Convention has a
purely humanitarian and civilizing purpose: to safeguard the very existence of certain
human groups and to confirm and endorse the most elementary principles of
morality.109 In this regard, States Parties not only have a common interest in the
accomplishment of those high purposes, but also a legal and moral duty to take all
actions necessary for the prevention and suppression of acts of genocide.
73. Chile expresses its confidence in the work of the Court as an authority in international
law, and recognizes its crucial role in interpreting and clarifying the obligations under
the Convention, and ensuring that the principles enshrined in it are upheld and applied
consistently across the international community.
108 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza
Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, at p. 25.
109 Reservations to the Genocide Convention, Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p.
23.
- 21 -
74. On the basis of the statements set out above, Chile avails itself of the right conferred
upon it by Article 63 of the Statute to intervene in the proceedings in the case
concerning the Application of the Convention on the Prevention and Punishment of
the Crime of Genocide in the Gaza Strip (South Africa v. Israel), and believes that the
present Declaration meets the requirements established in Article 63 of the Statute
and Article 82 of the Rules of Court and is, thus, admissible.
75. Chile reserves the right to supplement or amend this Declaration, and to submit its
written observations on the subject-matter of the intervention, as it considers
necessary in response to subsequent developments in these proceedings.
IV. DOCUMENTS IN SUPPORT OF THE DECLARATION
76. The documents submitted in support of this declaration and annexed hereto are:
(i) United Nations Depository Notification of 15 June 1953 informing that, on 3 June
1953, the Government of Chile deposited with the Secretary-General of the United
Nations, in accordance with the provisions of Article XI, an instrument of
ratification of the Convention on the Prevention and Punishment of the Crime of
Genocide, of 9 December 1948, which became become effective on 1 September
1953.
(ii) Letter No. 161308 dated 6 February 2024 from the Registrar of the International
Court of Justice, Mr. Philippe Gautier, notifying the States Parties to the
Convention on the Prevention and Punishment of the Crime of Genocide, of 9
December 1948, that South Africa had invoked the Convention as the basis for
the jurisdiction of the Court and the claims on the merits.
V. APPOINTMENT OF AGENTS
77. The Government of the Republic of Chile hereby appoints Ambassador Claudio
Troncoso Repetto, General Director of Legal Affairs of the Chilean Ministry of
Foreign Affairs, as its Agent for the purposes of this Declaration and the present
proceedings.
- 22 -
78. Pursuant to Article 40, paragraph 1, of the Rules of Court, Chile requests that all
communications relating to this case be sent to the Embassy of the Republic of Chile
to the Kingdom of the Netherlands, at Parkstraat 30 2514 JK The Hague, Netherlands.
THE HAGUE, 12 September 2024
Claudio Troncoso Repetto
Agent of the Republic of Chile
- 23 -
LIST OF ANNEXES
Annex 1 United Nations Depository Notification of 15 June 1953 informing that, on 3
June 1953, the Government of Chile deposited with the Secretary-General of
the United Nations, in accordance with the provisions of Article XI, an
instrument of ratification of the Convention on the Prevention and Punishment
of the Crime of Genocide, of 9 December 1948, which became become
effective on 1 September 1953.
Annex 2 Letter No. 161308 dated 6 February 2024 from the Registrar of the International
Court of Justice, Mr. Philippe Gautier, notifying the States Parties to the
Convention on the Prevention and Punishment of the Crime of Genocide, of 9
December 1948, that South Africa had invoked the Convention as the basis for
the jurisdiction of the Court and the claims on the merits.
CERTIFICATION
The Ambassador of the Republic of Chile to the Kingdom of the Netherlands certifies the
authenticity of the signature and the capacity of the Agent of the Republic of Chile who
has signed the Declaration of Intervention by the Republic of Chile, and also certifies that
the documents annexed to the aforementioned Declaration of Intervention are true and
accurate copies of the originals of these documents.
Jaime Moscoso Valenzuela
Ambassador of the Republic of Chile
to the Kingdom of the Netherlands
Annex 1
United Nations Depository Notification of 15 June 1953 informing
that, on 3 June 1953, the Government of Chile deposited with
the Secretary-General of the United Nations, in accordance with
the provisions of Article XI, an instrument of ratification of the
Convention on the Prevention and Punishment of the Crime of
Genocide, of 9 December 1948, which became become effective
on 1 September 1953.
Annex 2
Letter No. 161308 dated 6 February 2024 from the Registrar of the
International Court of Justice, Mr. Philippe Gautier, notifying the
States Parties to the Convention on the Prevention and Punishment of
the Crime of Genocide, of 9 December 1948, that South Africa had
invoked the Convention as the basis for the jurisdiction of the Court
and the claims on the merits.
Déclaration d'intervention du Chili