Declaration of intervention of Bolivia

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
PLURINATIONAL STATE OF BOLIVIA
8 OCTOBER 2024
Table of Contents
I. Introduction 1
II. Procedural Background and Context for the Present Intervention 2
III. The Plurinational State of Bolivia as a Party to the Convention 10
IV. Particular Provisions of the Convention in Question in the Case 13
V. Construction of the Provisions for which the Plurinational State of Bolivia
Contends 14
VI. Documents in Support of the Declaration oflntervention 23
VII. Conclusion 24
Ce1tification 25
List of Annexes 26
I. INTRODUCTION
1 . The Government of the Plurinational State of Bolivia has the honour to submit to
the Court a declaration of intervention (henceforth "Declaration) pursuant to
Article 63, paragraph 2, 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. Article 82, paragraph 1 of the Rules of Court, provides that:
"[a] State which desires to avail itself of the right of intervention
conferred upon it by Article 63 of the Statute shall file a declaration to
that effect, signed in the manner provided for in Article 38, paragraph
3, of these Rules [ .. . ]. "
3. Article 82 of the Rules of Court also provides that the declaration filed by a State
wishing to avail itself of the right of intervention must specify the name of the agent,
the case and the convention to which the declaration relates, and 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.
4. This Declaration is consistent with Article 63 of the Statute of the Court and Article
82 of the Rules of Court. This Declaration will address each of these requirements
in turn, including the particulars required by sub-paragraphs (a) to (d) of paragraph
5.
II. PROCEDURAL BACKGROUND AND CONTEXT FOR THE PRESENT
INTERVENTION
5. On 29 December 2023, South Africa filed in the Registry of the Court an
Application instituting Proceedings against the State oflsrael alleging violations by
Israel of its obligations under the Convention on the Prevention and Punishment of
the Crime of Genocide (the "Genocide Convention")' in relation to Palestinians in
the Gaza Strip.
6. In its Application, South Africa submits that,
" . . . the conduct of Israel through its State organs, State agents, and
other persons and entities acting on its instructions or under its
direction, control or influence in relation to Palestinians in Gaza, is
in violation of its obligations under the Genocide Convention." 2
"The acts and omissions by Israel complained of by South Africa are
genocidal in character because they are intended to bring about the
destruction of a substantial part of the Palestinian national, racial and
ethnical group, that being the part of the Palestinian group in the Gaza
Strip [ . . . ] . The acts in question include killing Palestinians in Gaza,
causing them serious bodily and mental harm, and inflicting on them
conditions of life calculated to bring about their physical destruction.
The acts are all attributable to Israel, which has failed to prevent
genocide and is committing genocide in manifest violation of the
Genocide Convention, and which has also violated and is continuing to
violate its other fundamental obligations under the Genocide
Convention, including by failing to prevent or punish the direct and
public incitement to genocide by senior Israeli officials and others."3
7. As to the existence of a dispute, South Africa submits, inter alia, that:
"Having regard to the fact that the prohibition of genocide has the
character of a peremptory norm and that the obligations under the
Convention are owed erga omnes and erga omnes partes, Israel has
been made fully aware of the grave concerns expressed by the
1 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December
1948, entered into force 12 January 1951), 78 UNTS 277.
See Application instituting proceedings submitted by South Africa on 29 December 2023
(hereinafter "South Africa's Application"), para. 1 1 0 , p. 70.
3 Ibid., para. I , p. I .
2
international community, by States Parties to the Genocide Convention,
and by South Africa in particular, as to Israel's failure to cease, prevent
and punish the commission of genocide."
"There is plainly a dispute between Israel and South Africa relating to
the interpretation and application of the Genocide Convention, going
both to South Africa's compliance with its own obligation to prevent
genocide, and to Israel's compliance with its obligations not to commit
genocide and to prevent and punish genocide including the direct
and public incitement to genocide and to make reparations to its
victims and offer assurances and guarantees of non- repetition."
8. It should also be recalled that, in its Provisional Measure Order of 26 January 2024,°
the Court rejected "Israel's request that the case be removed from the General
List", 7 and concluded that:
"the Parties appear 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. The Court finds that the above-mentioned elements are
sufficient at this stage to establish prima facie the existence of a dispute
between the Parties relating to the interpretation, application or
fulfilment of the Genocide Convention"8
and that,
"prima facie, [the Court] has jurisdiction pursuant to Article IX of the
Genocide Convention to entertain the case."
9. In the same Order the Court, among other relevant statements, recalled that"[ .. . ]
the civilian population in the Gaza Strip remains extremely vulnerable [and] that
the military operation conducted by Israel after 7 October 2023 has resulted, inter
alia, in tens of thousands of deaths and injuries and the destruction of homes,
schools, medical facilities and other vital infrastructure, as well as displacement on
Ibid., para.13, p.6.
5 Ibid., para.16, p.9.
6 In its Order, the Court concluded that the conditions required by its Statute for it to indicate
provisional measures were met, and ordered 6 provisional measures. See the Order for Provisional
Measures, 26 January 2024, para.86, pp.24-26.
7 Order for Provisional Measures, 26 January 2024, para.32, p. 1 2.
8 Ibid., para.28, p . 1 1 .
Ibid., para.31, p . 1 2 .
3
a massive scale [ . . . ] . Furthermore, the Court acknowledged that "many
Palestinians in the Gaza Strip have no access to the most basic foodstuffs, potable
water, electricity, essential medicines or heating."1 1
1 0 . Ultimately, the Court concluded that the conditions required by its Statute for it to
indicate provisional measures were met, including "urgency, in the sense that there
is 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" .1 2 The Court
proceeded to order six provisional measures.
1 1 . On 1 2 February 2024, South Africa submitted an urgent request for additional
measures under Article 7 5, paragraph 1 , of the Rules of Court, "to prevent further
imminent breach of the rights of Palestinians in Gaza', due to the Israeli assault
on Rafah, starting on 1 1 February 2024. This request by South Africa revealed and
confirmed, among others, the gravity of the situation and the intention of Israel to
continue its campaign of "large-scale killing, harm and destruction in serious and
irreparable breach both of the Genocide Convention and of the Court's Order of 26
January 2024,
12. The Court took a decision on the aforementioned request on 16 February 2024
indicating that "[t]his perilous situation demands immediate and effective
implementation of the provisional measures indicated by the Court in its Order of
26 January 2024, which are applicable throughout the Gaza Strip, including in
Rafah [ ... ] . [It] also emphasized that the State of Israel remains bound to fully
comply with its obligations under the Genocide Convention and with the [Order of
26 January 2024], including by ensuring the safety and security of the Palestinians
in the Gaza Strip."
"" Ibid., para.70, p.22.
I I Ibid.
Ibid., para.74, p.22
See the "Urgent Request for Additional Measures under Article 75 ( 1 ) of the Rules of Court of
the International Court of Justice", submitted by South Africa on the 12" of February 2024.
' Ibid., para.7, p.2.
4
1 3 . On 6 March 2024 and 10 May 2024, South Africa requested the Court to indicate
additional provisional measures and to modify the measures previously ordered by
the Court.
14. The South African requests of March and May were in response of the urgency "in
light of the new facts and changes in the situation in Gaza particularly the situation
of widespread starvation - brought about by the continuing egregious breaches of
the Convention [ . . . ] by the State of Israel [ . . . ] and its ongoing manifest violations
of the provisional measures indicated by [the] Court on 26 January 2024 and "from
grave and irreparable violations of [the rights of the Palestinian people in Gaza],
and of South Africa's rights, under the Convention on the Prevention and
Punishment of the Crime of Genocide [ .. . ], as a result of Israel's ongoing military
assault on Rafah." As clearly stated by South Africa:
"[t]he situation brought about by the Israeli assault on Rafah, and the
extreme risk it poses to humanitarian supplies and basic services into
Gaza, to the survival of the Palestinian medical system, and to the very
survival of Palestinians in Gaza as a group, is not only an escalation of
the prevailing situation, but gives rise to new facts that are causing
irreparable harm to the rights of the Palestinian people in Gaza.°
15. On May 24, 2024, the Court issued its Order, reaffirming the provisional measures
indicated in its Orders of 26 January 2024 and 28 March 2024. Additionally, the
Court concluded that the "State of Israel shall, in conformity with its obligations
under the Convention on the Prevention and Punishment of the Crime of Genocide,
and in view of the worsening conditions of life faced by civilians in the Rafah
Governorate: 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; maintain
See the "Urgent Request for the Modification and Indication of Provisional Measures Pursuant to
Article 41 of the Statute of the International Court of Justice and Article 75 and 76 of the Rules of
Court of the International Court of Justice", submitted by South Africa on the 10" of May 2024.
5
open the Rafah crossing for unhindered provision at scale of urgently needed basic
services and humanitarian assistance; and take effective measures to ensure the
unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding
mission or other investigative body mandated by competent organs of the United
Nations to investigate allegations of genocide.16
16. Bolivia presents this brief account of the various requests for provisional measures
and the various Orders of the Court in order to underline the tragic nature of this
case, which has required increasing measures intended to protect the Palestinian
people against Israel's continuous violations of its obligations under the Genocide
Convention, and against the incalculable suffering inflicted by Israel on the
Palestinian people in the Gaza Strip. And yet, despite the various Orders of
provisional measures issued by the Court, Israel's genocidal war continues, and the
Court's Orders remain dead letters to Israel.
17. Indeed, it is estimated that Israel has killed over 36,000 Palestinians, at least 15,000
of them children, in addition to wounding approximately 81,000 since its onslaught
against Gaza began in October 2023.1 7 As the Court is aware, the humanitarian
situation in the Gaza Strip is "disastrous" and continues to deteriorate.18
1 8 . Numerous reports by experts, international bodies, NGOs, civil society and the
United Nations confirm the catastrophic humanitarian situation in the Gaza Strip.
As reflected in the record of the proceedings:
• the Secretary-General of the United Nations has stated that "[t]he healthcare
system in Gaza is collapsing . . . Nowhere is safe in Gaza.[ .. . ] We are
facing a severe risk of collapse of the humanitarian system. The situation is
"° Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the
Gaza Strip (South Africa v. Israel), Order, Provisional Measures, 24 May 2024.
7 Hostilities in the Gaza Strip and Israel - reported impact, Day 236, 29 May 2024:
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-236. For a
continuous updating, see OCHA, Reported Impact since 7 October 2023, available at:
https://www .ochaopt.org
" See Order of 24 May 2024, para.28.
6
fast deteriorating into a catastrophe with potentially irreversible
implications for Palestinians as a whole and for peace and security in the
region. Such an outcome must be avoided at all costs."! [ . . . ] "Palestinians
in Gaza are enduring horrifying levels of hunger and suffering. This is the
highest number of people facing catastrophic hunger ever recorded by the
Integrated Food Security Classification system, anywhere, anytime. This is
an entirely manmade disaster [ . . . 1 . 3 On 6 April 2024, the SecretaryGeneral
noted that in its "speed, scale and inhumane ferocity, the war in
Gaza is the deadliest of conflicts". He called for the "delivery oflife-saving
aid under a UN mechanism";21
• the United Nations Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA) Commissioner-General, upon returning from his
fourth visit to the Gaza Strip since the beginning of the current conflict,
stated that"[ e ]very time I visit Gaza, I witness how people have sunk further
into despair, with the struggle for survival consuming every hour";22
• the World Health Organization (WHO) has estimated that 1 5 per cent of the
women giving birth in the Gaza Strip are likely to experience complications,
and has indicated that maternal and newborn death rates are expected to
increase due to the lack of access to medical care;
• the Integrated Food Security Phase Classification (IPC) has reported that
"[ . . . ] [f]amine is imminent in the northern governorates and projected to
occur anytime?:
"9 United Nations Security Council, doc. S/2023/962, 6 Dec. 2023.
20 United Nations, Secretary-General's press encounter on Gaza food insecurity report Statement,
1 8 March 2024.
2 UN, Secretary-General's Press Encounter on Gaza, press release, 5 April 2024, available at:
https :/ /www.un.org/ sg/ en/ content/ s g/press-encounter/2024-04-0 5/ secretary-generals-pressencounter-
gazascro 11-down - for-ara b ic
22 UNRWA, "The Gaza Strip: a struggle for daily survival amid death, exhaustion and despair,
Statement by Philippe Lazzarini, Commissioner-General ofUNRWA, 1 7 Jan. 2024.
2 1PC Global Initiative, "Special Brief: the Gaza Strip", 1 8 March 2024. The concerns of imminent
7
• the United Nations Children's Fund (UNICEF) has reported that 3 1 per cent
of children under 2 years of age in the northern Gaza Strip suffer from acute
malnutrition, and it has warned that malnutrition among children is
spreading fast and reaching devastating and unprecedented levels in the
Gaza Strip due to the wide-reaching impacts of the war and ongoing
restrictions on aid delivery;
• the United Nations High Commissioner for Human Rights (UNHCHR) has
stressed that "[t]he situation of hunger, starvation and famine is a result of
Israel's extensive restrictions on the entry and distribution of humanitarian
aid and commercial goods, displacement of most of the population, as well
as the destruction of crucial civilian infrastructure".25
19. The above is only part of the evidence of Israel's violations of its obligations under
the Genocide Convention. The truth is that the evidence continues to accumulate,
and all of it irrefutably and consistently confirms the catastrophic humanitarian
situation resulted from the acts committed by Israel, which are intended to bring
about the destruction of a substantial part of the Palestinian national, racial and
ethnical group, i.e., the part of this group in the Gaza Strip. This is the context in
which the Plurinational State of Bolivia is compelled to intervene in these
proceedings. As unequivocally stated in the latest report of the Special Rapporteur
on the situation of human rights in the Palestinian territories occupied since 1967.326
"By analysing the patterns of violence and Israel's policies in its
onslaught on Gaza, this report concludes that there are reasonable
famine were also noted by the Court in its Order of 28 March 2024, in which the Court observed
that Palestinians in Gaza are no longer facing only a risk of famine, as noted in its previous Order,
but "that famine is setting in" . See Application of the Convention on the Prevention and Punishment
of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order by the ICJ, 28 March
2024, p. 7 para.2l(emphasis added).
24"Acute malnutrition has doubled in one month in the north of Gaza strip: UNICEF, press release,
15 March 2024.
25 ·Comment by UN High Commissioner for Human Rights Volker T~rk on the risk of famine in
Gaza", press release, 1 9 March 2024.
26UN Doc. A/HRC/55/73, 25 March 2024 (advanced unedited version).
8
grounds to believe that the threshold indicating Israel's commission of
genocide is met. One of the key findings is that Israel's executive and
military leadership and soldiers have intentionally distorted jus in
hello principles, subverting their protective functions, in an attempt to
legitimize genocidal violence against the Palestinian people. ,m
20. From all of the above, it is clear that Israel's continuous actions and insidious crimes
have resulted in an increase in the number of dead and wounded, massive
destruction of homes, mass graves, forced displacement of the vast majority of the
population and extensive damage to civilian infrastructure, exponentially increasing
the humanitarian nightmare and catastrophic living conditions of Palestinians in the
Gaza Strip, compounded by the prolonged and widespread deprivation of food and
other basic necessities to which Israel is subjecting Palestinians in the Gaza Strip.
A genocide is taking place.
27 The Report of Special Rapporteur Francesca Albanese also indicates that "After five months of
military operations, Israel has destroyed Gaza. Over 30,000 Palestinians have been killed, including
more than 13,000 children. Over 12,000 are presumed dead and 71,000 injured, many with lifechanging
mutilations. Seventy percent of residential areas have been destroyed. Eighty percent of
the whole population has been forcibly displaced. Thousands of families have lost loved ones or
have been wiped out. Many could not bury and mourn their relatives, forced instead to leave their
bodies decomposing in homes, in the street or under the rubble. Thousands have been detained and
systematically subjected to inhuman and degrading treatment. The incalculable collective trauma
will be experienced for generations to come."Ibid, summary (emphasis added).
9
III. THE PLURINATIONAL STATE OF BOLIVIA AS A PARTY TO THE
CONVENTION
21. On 6 February 2024, the Registrar of the Court notified States Parties to the
Convention, including the Plurinational State of Bolivia, that the construction of the
Genocide Convention would be in question in the case filed by South Africa against
Israel. The Registrar confinned that the Convention was invoked both as a basis for
the Court's jurisdiction pursuant to Article IX, and as a substantive basis of the
Applicant's claims on the merits, with specific reference to Articles I, III, IV, V and
VI.
22. The Plurinational State of Bolivia signed the Genocide Convention on 1 1 December
1948 and ratified it, in accordance with Article XI, on 14 June 2005 .28 Bolivia has
not made any reservation or declaration to the Convention, nor has it objected to
any reservation made by another State party.
23. Furthermore, Bolivia understands that, by exercising its right to intervene under
Article 63 of the Statute of the Court, the construction of the Genocide Convention
given by the Judgment in this case will be equally binding upon it.
24. At present, the case may raise issues concerning the constrnction of Articles I, II,
III, IV, V, and VI as well as of the Preamble to the Convention. As evidenced by
this Declaration, the Plurinational State of Bolivia has views on the interpretation
of each of these provisions.
25. The Court has observed that "all the States parties to the [Genocide] Convention
have a common interest to ensure the prevention, suppression and punishment of
genocide, by committing themselves to fulfilling the obligations contained in the
Convention".29 As such, and as a Party to the Genocide Convention, Bolivia
28 See Annex 2, United Nations Depository Notification confirming Bolivia's ratification of the
Genocide Convention, dated 1 5 June 2005.
? 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. 107.
10
considers that the case instituted by South Africa raises vital issues concerning the
rights and obligations of States Parties to the Convention, as well as the
interpretation and application of several articles of the Convention -which reflect
both erga omnes obligations owed to the international community as a whole, and
erga omnes partes obligations owed to all States Parties to the Convention - i n
relation not only to the prohibition of genocide, but also to the obligation to prevent
genocide.
26. Due to the gravity of the crimes and atrocities committed so far by Israel, the
President of Bolivia, Mr. Luis Arce Catacora, took the decision to cut diplomatic
relations with Israel "in repudiation and condemnation of Israel's aggressive and
disproportionate offensive in the Gaza Strip"," demanding "an end to the attacks
that have so far resulted in thousands of civilian deaths and the forced displacement
of Palestinians", and "an end to the blockade that prevents the entry of food and
water"31 into the Gaza Strip. The Bolivian government's condemnation of the
genocidal nature of Israel's actions against the Palestinians in Gaza has been made
public and repeated.
27. Bolivia seeks to intervene since it considers that it has a responsibility to condemn
the crime of genocide and to provide its interpretation of the obligations set forth in
the Convention, in order to cooperate in the goal of "liberat[ing] mankind from such
an odious scourge".32 For this reason, the Plurinational State of Bolivia is
committed to combating the manifest threat of cumulative acts of genocide, and to
ensuring that the Palestinian people enjoy their inalienable right to existence and
self-determination.
30 See Communication from the Ministry of Foreign Affairs of the Plurinational State of Bolivia
"Bolivia breaks diplomatic relations with Israel and calls for an end to attacks on the Gaza Strip,"
dated 3 1 October 2023, available at https://cancilleria.gob.bo/mre/2023/10/31/11891/. See also, Luis
Alberto Arce Catacora (Lucho Arce), Presidente Constitucional del Estado Plurinacional de Bolivia,
@LuchoXBolivia,Tweet (November, 16 2023),
https://twitter.com/LuchoXBolivia/status/ 1724981446001967283
31bid.
3 1bid.
1 1
28. In view of the Applicant's claims that the State of Israel has failed to prevent
genocide, failed to prosecute direct and public incitement to genocide, and itself
continues to commit genocide, the Plurinational State of Bolivia, as a Party to the
Genocide Convention, submits this Declaration of Intervention on the basis of
Article 63 (2) of the ICJ Statute.
12
IV. PARTICULAR PROVISIONS OF THE CONVENTION IN QUESTION IN THE
CASE
29. In its Application, South Africa claims that,
"the conduct of Israel through its State organs, State agents, and
other persons and entities acting on its instructions or under its
direction, control or influence in relation to Palestinians in Gaza, is
in violation of its obligations under the Genocide Convention, including
Articles I, III, IV, V and VI, read in conjunction with Article II."
30. The Plurinational State of Bolivia identifies the following provisions of the
Genocide Convention the construction of which is presently in question in this case,
as required under Article 82 of the Rules of Court: Article I (General obligations);
Article II (Definition of genocide); Article III (Acts punishable under the
Convention); Article IV (Obligation to punish the commission of genocide); Article
V (Obligation to enact legislation); and Article VI (Trial of persons charged with
genocide).
1 3
V. CONSTRUCTION OF THE PROVISIONS FOR WHICH THE PLURINATIONAL
STATE OF BOLIVIA CONTENDS
3 1 . The Court has laid down certain general criteria to be used as guidance when
interpreting the provisions of the Genocide Convention. Firstly, as to the applicable
legal framework, since the Convention does not "stand alone",33 the Law of Treaties
and the Law of State Responsibility come into play. It must be recalled that Articles
3 1 and 32 of the Vienna Convention on the Law of Treaties establish the rules
governing the interpretation of international instruments such as the Genocide
Convention34. These rules are, moreover, norms of customary international law.
32. As explained in Section IV supra, the construction of several provisions of the
Genocide Convention are at issue in this case. These Articles must be interpreted in
their context, including in regard to other substantive provisions of the Convention.
Article I--General obligations
33. As the Court has observed, the origins of the Convention are rooted in the intention
"to condemn and punish genocide as 'a crime under international law' involving a
denial of the right of existence of entire human groups, a denial which shocks the
conscience of mankind and results in great losses to humanity. Article I thus
states:
"The Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law which
they undertake to prevent and to punish."
3 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. 105, para.
149.
34 See Order of 3 July 2024 on the Admissibility of the declarations of intervention in the case
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), para. 45, p. l 0, where the Court stated that "references to other rules and
principles of international law outside the Genocide Convention will only be taken into account by
the Court in so far as they may be relevant for the construction of the Convention's provisions[ . . . ]".
35 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1 9 5 1 , p. 23.
14
34. The Court has considered the two propositions stated in this Article, characterizing
the first proposition as:
"[ .. . ] the affirmation that genocide is a crime under international law.
That affirmation is to be read in conjunction with the declaration that
genocide is a crime under international law, unanimously adopted by
the General Assembly two years earlier in its resolution 96 (1), and
referred to in the Preamble to the Convention[ . . . ]".36
35. The Court has observed that the second proposition in Article I relates to the
undertaking by Contracting Parties to prevent and punish the crime of genocide. As
stated in Article I, it is equally possible for a genocidal act to be committed in times
of peace and times of war:
"States parties to the Convention have 'expressly confirmed their
willingness to consider genocide as a crime under international law
which they must prevent and punish independently of the context "of
peace" or "of war" in which it takes place.
36. Although Article I "does not specify the kinds of measures that a Contracting Party
may take to fulfil" these obligations to prevent and punish genocide, it is clear that
the Contracting Parties "must implement [them] in good faith". When interpreting
Article I's obligation to prevent genocide, the Court has particularly emphasized
the autonomous nature of this duty:
"The obligation on each contracting State to prevent genocide is both
normative and compelling. It is not merged in the duty to punish, nor
can it be regarded as simply a component of that duty. It has its own
scope, which extends beyond the particular case envisaged in Article
3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007, p. 43, para.
161.
3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (The
Gambia v. Myanmar), Provisional Measures, Order of23 January 2020, I.CJ. Reports 2020, pp. 27-
28, para. 74, citing Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996, p. 6 1 5 , para. 3 1.
38 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.CJ.
Reports 2022, p. 224, para. 56.
1 5
VIII, namely reference to the competent organs of the United Nations,
for them to take such action as they deem appropriate. Even if and when
these organs have been called upon, this does not mean that the States
parties to the Convention are relieved of the obligation to take such
action as they can to prevent genocide from occurring, while respecting
the United Nations Charter and any decisions that may have been taken
by its competent organs."39
37. In its Application, South Africa tightly considers that specifically with regard to
Article I of the Convention, Israel has failed both to prevent and to punish
genocide." As the Court addresses these heinous crimes, the Plurinational State of
Bolivia seeks to exercise its right to intervene to elaborate its construction of these
obligations under Article I.
Article II- Definition of genocide
38. Article II of the Genocide Convention reads as follows:
"In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
( c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
( d) Imposing measures intended to prevent births within the group;
( e) Forcibly transferring children of the group to another group."
39. As the Court has explained, Article II contains an exhaustive list of acts constituting
the crime of genocide, while defining the two constituent elements of the crime: the
physical element or actus reus, and the mental element or mens rea.41 The chapeau
of Article II concerns the latter element of genocidal intent, which differentiates
3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007, pp. 219-220,
para. 427.
" Application, para. 1 1 0 .
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 62, para. 130.
16
this from other international crimes. Article II thus states that genocide involves
specific acts committed with the intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group.
40. The acts subsequently enumerated in Article II of the Convention constitute the
actus reus of genocide. In Bolivia's view, such acts cannot be taken in isolation and
must be assessed in the context of the prevention and punishment of genocide,
which is the object of the Convention.
4 1 . While Bolivia seeks to intervene in respect of the construction of all provisions of
Article II, it wishes to emphasize in particular that rape and other crimes of sexual
violence, deportation or inhuman and degrading treatment, deprivation including
starvation, indiscriminate attacks, and the infliction of collective fear or strong terror,
intimidation, or threat may amount to genocidal acts within the meaning of Article II
(b) if the individual threshold of seriousness of the harm is met.
42. Similarly, Bolivia wishes to underscore that siege, starvation, widespread
destmction of civilian and medical infrastmcture, deprivation of food and medical
supplies and treatment, forcible displacement by means of systematic deportation,
and denial of access to humanitarian aid may amount to genocidal acts within the
meaning of Article II ( c ).
43. Additionally, Bolivia maintains that strikes and blockades leading to extreme
conditions of life, lack of essential supplies, inadequate or inexistant healthcare,
maternity or emergency assistance, and undernourishment may amount to
genocidal acts within the meaning of Article II ( d) through a serious increase in
miscaniages, stillbirths, premature births, and deaths from preventable causes in
both women and infants.
44. In order to prove genocide, it is necessary to show that one or more of the acts listed
in Article II of the Convention were carried out with an "intent to destroy, in whole
17
or in part, a national, ethnical, racial or religious group, as such". In Bolivia's
interpretation of the Convention, actions carried out under the circumstances of this
case -where high-level authorities in Israel have expressly stated their intent to
clear the Gaza Strip of Palestinian inhabitants by killing them, causing serious harm
to them, physically eliminating their living spaces, health facilities, and means of
subsistence, and hindering charitable efforts to bring food and medicine to the area
- imply that acts constituting the actus reus of genocide within the meaning of
Article II were committed with the required mens rea to be characterized as such.
Bolivia thus seeks to exercise its right to intervene to elaborate its construction of
Article II.
Article III --Acts punishable under the Convention
45. Article III of the Genocide Convention states that "[t]he following acts shall be
punishable: ( a) Genocide; (b) Conspiracy to commit genocide; ( c) Direct and public
incitement to commit genocide; ( d) Attempt to commit genocide; ( e) Complicity in
genocide". The latter four categories of offenses are referred to as "other acts" in
Articles IV through IX of the Convention, as crimes which are also punishable.
Therefore, Israeli leaders who did not themselves commit or personally direct the
commission of the acts in question may nonetheless be guilty of crimes set out in
Article III.
46. Bolivia considers that these "other acts" serve a preventive function which is critical
to the fulfilment of the Convention, consistent with its object and purpose and
concurrent obligation to prevent genocide. The mens rea required for these crimes
is the specific intent to destroy, in whole or in part, a protected group as such.
47. While Bolivia seeks to intervene in respect of the construction of all provisions of
Article III, it wishes to emphasize in particular that the actus reus of "conspiracy"
within the meaning of Article III (b) comprises the situation where two or more
persons have agreed upon a common plan to commit genocide.
1 8
48. Similarly, Bolivia wishes to underscore that the crnne of "direct and public
incitement to commit genocide" under Article III ( c) may be perpetrated even if
nobody actually acts upon this incitement. It considers that punishing incitement is
entirely consistent with the obligation of States Parties to the Genocide Convention
to prevent genocide the first of the two core goals of the Convention.
49. Additionally, Bolivia maintains that Article III (e) must be interpreted in light of
the gravity that the crime of "complicity" was intended to comprise during the
drafting of the Convention. Bolivia thus seeks to exercise its right to intervene to
elaborate its construction of Article III.
Article IV-- Obligation to punish the commission of genocide
50. Article IV refers to the principal duty to punish, and states as follows:
"Persons committing genocide or any of the other acts enumerated in
article III shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals."
51. In Bolivia's view, Articles IV to VI are the cornerstones of and give substance to
the obligation to punish genocide, as enunciated in Article I. These articles include
provisions that give practical dimensions to the substantive obligations found in the
first three articles of the Convention. As such, they should be read jointly as each,
in turn, builds upon the other, ensuring that States Party fulfil the object and purpose
of the Convention. Bolivia thus seeks to exercise its right to intervene to elaborate
its construction of Article IV.
Article V - Obligation to enact legislation
52. Article V imposes an obligation on the contracting parties of the Genocide
Convention to incorporate its provisions into domestic law through the enactment
19
of legislation. It states:
"The Contracting Parties undertake to enact, in accordance with their
respective Constitutions, the necessary legislation to give effect to the
provisions of the present Convention, and, in particular, to provide
effective penalties for persons guilty of genocide or any of the other
acts enumerated in article III."
53. In Bolivia's view, Article V particularizes the obligation to give domestic effect to
the Convention by mandating that States 'provide effective penalties' for genocide.
The failure to promulgate such legislation or to provide effective penalties thus
comprises a breach of Article V. Bolivia thus seeks to exercise its right to intervene
to elaborate its construction of Article V.
Article VJ - Trial of persons charged with genocide
54. Article VI sets forth the obligation of States Parties to prosecute persons for acts
committed in their territory, or to cooperate with international penal tribunals that
may be competent in the matter. It states:
"Persons charged with genocide or any of the other acts enumerated in
article III shall be tried by a competent tribunal of the State in the
territory of which the act was committed, or by such international penal
tribunal as may have jurisdiction with respect to those Contracting
Parties which shall have accepted its jurisdiction."
55. In Bolivia's view, this obligation must be read in tandem with the obligation
contained in Article IV, such that States must act against all persons who may be
charged with having committed genocidal acts. Bolivia also considers that the
territorial scope of Article VI should be read without prejudice to Article I of the
Convention. Like Articles IV and V, Article VI must be read in light of the deterrent
and preventive functions of punishment. In this manner, the failure to abide by
Articles IV through VI gives rise as well to a violation of Article I. As with these
preceding provisions, Bolivia thus seeks to exercise its right to intervene to
20
elaborate its construction of Article VI.
Article IX Settlement of disputes
56. Finally, Bolivia recalls that South Africa invokes Article IX of the Convention as
the sole basis for the Court's jurisdiction in this case. Article IX states:
"Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those
relating to the responsibility of a State for genocide or for any of the
other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to the
dispute."
57. Earlier in this case, Israel advanced the view that the Court lacks prima facie
jurisdiction to entertain the case, as one of the grounds for its submission that a
request for provisional measures submitted by South Africa was to be rejected.42 As
such, Bolivia considers that the construction of Article IX of the Convention may
come into question in this case. It therefore submits the present declaration in
relation to the merits phase and, if necessary, also in relation to a preliminary
objection phase.
58. Bolivia recalls that, with regard to the admissibility of declarations of intervention,
the Court has held:
"The Court does not consider that it must decide on the existence and
scope of the dispute between the Parties before ruling on the
admissibility of the declarations of intervention. Article 63 of the
Statute gives States a right to intervene whenever the construction of a
multilateral convention is in question, and Article 82, subparagraph 2
(b) of the Rules of Court provides that a State seeking to intervene must
identify 'the particular provisions of the convention the construction of
+ See 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. 28-29 and 3 1 .
21
which it considers to be in question.
59. In Bolivia's view, the present case concerns a dispute relating to the interpretation,
application or fulfilment of the Convention. While the Convention does not confer
jurisdiction upon the Court to rule on alleged breaches of other obligations under
international law, such as those protecting basic rights in aimed conflict,44 the Court
can nevertheless factor in the relevance of such rules and breaches when addressing
the case at hand.45 To the extent that the Court addresses its jurisdiction in this
regard, Bolivia thus seeks to exercise its right to intervene to elaborate its
construction of Article IX.
6 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Admissibility of the Declarations oflntervention, Order
of 5 June 2023, para. 68.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007, p. 104, para.
147.
" Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2 0 1 5 , pp. 45-46, para. 85.
22
VI. DOCUMENTS IN SUPPORT OF THE DECLARATION OF INTERVENTION
60. The Plurinational State of Bolivia submits the following documents appended
hereto in support of this Declaration of Intervention:
Annex 1 : Letter No. 161308 from the Registrar to States Parties to
the Genocide Convention, sent pursuant to Article 63, paragraph 1 , of
the Statute of the Court, dated 6 February 2024.
Annex 2: United Nations Depository Notification confirming Bolivia's
ratification of the Genocide Convention, dated 1 5 June 2005
23
VII. CONCLUSION
6 1 . The Government of the Plurinational State of Bolivia submits the present
Declaration of Intervention in the genuine belief that the States Parties to the
Genocide Convention should do everything in their power to contribute to ensure
the prevention, suppression, and punishment of genocide, and therefore to assist the
Court in finding the responsibility of any State Party to the Convention for its failure
to comply with the obligations contained therein, especially in the context of such
a dramatic situation as that unfolding in the Gaza Strip.
62. The Plurinational State of Bolivia avails itself of the right conferred upon it by
Article 63, paragraph 2, of the Statute of the Court 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). On
the basis of the information set out above, the present Declaration meets the
requirements set out in Article 63 of the Statute and Article 82 of the Rules and is,
thus, admissible.
63. The Plurinational State of Bolivia reserves the right to supplement or amend this
Declaration, and any Written Observations submitted with respect to it, as it
considers necessary and in response to subsequent developments in these
proceedings.
64. The Plurinational State of Bolivia has appointed the undersigned as Agent for the
purposes of the present Declaration. It is requested that all communications in this
case be sent to the following address: Embassy of the Plurinational State of Bolivia,
Nassauplein 2 2585EA, The Hague, The Netherlands.
Agent o 1a
24
CERTIFICATION
I certify that the documents attached by way of Annexes to this Declaration are
hue copies of the originals thereof.
8 October 2024
25
LIST OF ANNEXES
Annex I : Letter No. 161308 from the Registrar to States Parties to the
Genocide Convention, sent pursuant to Article 63, paragraph 1 , of the
Statute of the Court, dated 6 February 2024.
Annex 2: United Nations Depository Notification confirming Bolivia's
ratification of the Genocide Convention, dated 1 5 June 2005
26
Annex 1
Letter No. I 6 I 308 from the Registrar to States Parties to the Genocide Convention, sent pursuant to
Article 63, paragraph I , of the Statute of the Court, dated 6 February 2024.
By email only
161308
COUR INTERNATIONALE
DE JUSTICE
INTERNATIONAL COURT
OF JUSTICF
6 February 2024
I have the honour to refer to my letter (No. 1 6 1 0 1 0 ) dated 3 January 2024 informing your
Government that, on 29 December 2023, South Africa filed in the Registry of the Court an
Application instituting proceedings against the State of Israel in the case concerning Application of
the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip
(South Africa v. Israel). A copy of the Application was appended to that letter. The text of the
Application is also available on the website of the Court (www.icj-cij.org).
Article 63, paragraph I , of the Statute of the Court provides that:
[wJhenever the construction of a convention to which States other than those concerned
in the case are parties is in question, the Registrar shall notify all such States forthwith'.
Further, under Article 43, paragraph 1 , of the Rules of Court:
"Whenever the construction of a convention to which States other than those
concerned in the case are parties may be in question within the meaning of Article 63,
paragraph I , of the Statute, the Court shall consider what directions shall be given to the
Registrar in the matter."
On the instructions of the Court, given in accordance with the said provision of the Rules of
Court, I have the honour to notify your Government of the following.
In the above-mentioned Application, the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide (hereinafter the "Genocide Convention") is invoked both as a basis of the
Court's jurisdiction and as a substantive basis of the Applicant's claims on the merits. In particular,
the Applicant seeks to found the Court's jurisdiction on the compromissory clause contained in
Article IX of the Genocide Convention and alleges violations of Articles I, Ill, IV, V and VI of the
Convention. It therefore appears that the construction of this instrument will be in question in the
case.
.I.
[Letter to the States parties to the Genocide Convention
(except South Africa and Israel)]
Palais de la Paix, Carnegieplein 2
25 17KJ La Haye- Pays-Bas
T~l~phone.+31 (0) 70 302 23 23 - Facsimil~:-31 (0) 70 364 99 28
Site Intemet; www.icj-cij org
Peace Palace, Carnegieplein 2
2517KJ The Hague - Netherlands
Telephone: +3 1 (0) 70 302 23 23 - Telefax. -31 (0) 70 364 99 28
Website: www.icj-cij.org
COUR INTERNATIONALE
DE JUSTICE
INTERNATIONAL COURT
OF JUSTICE
Your country is included in the list of parties to the Genocide Convention. The present letter
should accordingly be regarded as the notification contemplated by Article 63, paragraph 1 , of the
Statute. I would add that this notification in no way prejudges any question of the possible application
of Article 63, paragraph 2, of the Statute, which the Court may later be called upon to determine in
this case.
Accept, Excellency, the assurances of my highest consideration.
(Philippe
Gautier
Registrar
- 2 Annex
2
United Nations Depository Notification confirming Bolivia's ratification of the Genocide Convention,
dated 1 5 June 2005
U N I T E D N A T I O N S N A T I O N S U N I E S
(IV.I)
POSTAL ADDRESS ADESSE POSTALE UNITED NATIONS, N.Y. 10OTT
CABLE ADDRESS-ADRESSE TELEGRAPHIQUE UNATIONS NEWYORK
Reference: C.N.458.2005.TREATIES-l (Depositary Notification)
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME
OF GENOCIDE
NEW YORK, 9 DECEMBER 1948
BOLIVIA: RATIFICATION
The Secretary-General of the United Nations, acting in his capacity as depositary,
communicates the following:
The above action was effected on 14 June 2005.
The Convention will enter into force for Bolivia on 12 September 2005 in accordance with its
article XIII (3) which reads as follows:
"Any ratification or accession effected subsequent to the latter date [ ... the date of deposit of
the twentieth instrument of ratification or accession] shall become effective on the ninetieth day
following the deposit of the instrument of ratification or accession."
14 June 2005
Attention: Treaty Services of Ministries of Foreign Affairs and of international organizations concerned.
Depositary notifications are made available to the Permanent Missions to the United Nations at the
following e-mail address: [email protected]. Such notifications are also available in the United Nations
Treaty Collection on the Internet at http://untreaty.un.org.