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Ireland's political and cultural magazine
October-November 71
Genesis of Genocide
Ireland’s submission in support
of South Africa’s case against
Israel over Gaza of wants genocide
to be based on the foreseeable
consequences of actions instead
of the intent of those actions
but the ICJ is reluctant to find
genocide where actions can be
ascribed to other international
crimes
By J Vivan Cooke
The name of the International Court
of Justice (ICJ) is a statement of its
aspirations rather than an accurate
description of its functions. Despite
its best intentions and the valiant
strivins of its judes, ultimately it dispenses
the law and only occasionally and incidentally
justice. It will apply international law as it is
rather than as we would wish it to be, in the
two cases of states accused of enocide that
are currently bein litiated before it.
On November , Gambia accused
Myanmar of committin enocide and, on
December , South Africa initiated
proceedins aainst Israel for the crime of
enocide. Subsequently, Ireland loded
interventions in both cases: in Gambia v
Myanmar on December , and, in
South Africa v Israel on January . The
interventions do not mean we have ‘joined’
the cases; neither does our intervention
accuse Israel of committin enocide in Gaza.
Instead, Ireland chose to raise eneral
matters of law in the abstract. Both
ICJ considers South Afric’s cse ginst Isrel
INTERNATIONAL
72 October-November
From this distinction arise the essential
points of Ireland’s intervention: that the
leal denition of intent is dierent in cases
of enocide perpetrated by an individual
from cases of enocide committed by a
state.
Not only that, but for states accused of
enocide, “intent” is not limited to acts
committed with the objective of the
destruction of a roup, but also those acts
where:
“the foreseeable and probable
consequences of the conduct concerned
will lead to the destruction of the protected
roup, in whole or in part. Where such
destruction is the reasonably foreseeable
result, it is a stron indicator of the
existence of a enocidal plan or campain,
as will be the failure to stop or prevent the
continuation of the conduct concerned”.
This approach was ratifyinly followed by
the IICI report in September even thouh it
is a call for a sinicant departure from the
ICJ’s previous view that enocide is a crime
of specic intent; where it is not sucient
that the uilty party should be aware that
their actions will ive rise to acts of
enocide, but they must intend that
enocide to occur.
A corollary of this arument is that the
strenth of the proof demanded to prove
enocide is also dierent — evidence in
cases of individuals must be beyond a
reasonable doubt whereas in cases of
states:
“Ireland respectfully submits that the
Court should be open to assessin breaches
of the Convention on the balance of the
evidence”.
This opens the way for a ndin of
enocide to be based on the foreseeable
consequences of actions instead of the
intent of those actions. Instead of havin to
produce evidence that explicitly documents
enocidal intent the Irish standard would
allow the ICJ to conclude enocidal intent
from the actions of the state and the broader
context of those actions, includin forms of
collective punishment such as induced
famine; the widespread indiscriminate
slauhter of civilians; the destruction of the
submissions asked the court to consider a
novel interpretation of the eneral
international law concernin enocide as
expressed, primarily, in the
Convention on the Prevention and
Prosecution of the Crime of Genocide and,
more specically, in application of the
intent component of the definition of
enocide in Art II — that part of Art II which
states that enocide is:
“acts committed with intent to destroy, in
whole or in part, a national, ethnic, racial or
reliious roup”.
From this provision emeres the fact that
the ICJ must be satisfied that two
components have been established before
it can nd that the crime of enocide has
been committed: both the act of destroyin
and the intent to destroy a protected roup.
The court’s current jurisprudence on the
subject is quite restrictive, and Ireland is
urin the court to adopt a more expansive
interpretation.
It may be helpful here to reconise two
threads in the development of the law on
enocide and war crimes. A recent interview
of lawyer Philippe Sands by Ezra Klein in the
New York Times captures it well:
“There are basically two ideas that
emere at exactly the same moment [durin
the Second World War]. Raphael Lemkin
invents the concept of enocide, which is
focused on the protection of roups. Then
his counterpart Hersch Lauterpacht, who
studied, amazinly, at the same law school,
comes up with a dierent conception —
‘crimes aainst humanity’ — which is
focusin on the protection of individual
human beins. This juxtaposition of the
tension between the protection of the
individual and the protection of the roup
has one on ever since .
Interestinly, Lauterpacht was always
opposed to the concept of enocide. He
worried that focusin on the protection of
roups by reason of ethnicity, reliion, race,
nationality, whatever it may be — would
replace what he considered to be the
tyranny of the state with the tyranny of the
roups.
Lemkin rejected that arument: People
don’t et killed or attacked or tareted
because of their individual qualities or what
they’ve done as an individual. They’re
tareted because they’re a member of a
roup that is hated at a particular moment
in time and place. Therefore, if you want to
protect human beins, focus on the roup,
not the individual”.
Both Ireland and Spain hihlihted to the
court that the Convention treats crimes of
enocide by individuals dierently from
breaches of the Convention by states.
However, while Spain and Ireland share this
common startin point, their leal
aruments develop in dierent directions.
Spain arued that the dierence between
individuals and states creates a distinct set
of prohibitions and obliations. The UN
Independent International Commission of
Inquiry’s (IICI) report sinicantly
distinuishes state from individual
responsibility,
The Irish case asserts that under the
Convention, when enocide is committed by
an individual it is an international crime,
but, when enocide is committed by a state,
it is treated, not as a crime, but rather as an
international wron — analoous to a tort
in domestic civil law.
Ireland’s intervention on Israel claims
the legal definition of intent is different
in cases of genocide perpetrated by
an individual from cases of genocide
committed by a state; and that “intent”
is not limited to acts committed with the
objective of the destruction of a group
Post-genocide memoril, Srebrenic
October-November 73
infrastructure necessary to sustain life of a
population; and mass displacement.
Taoiseach Micheál Martin, when he was
Minister of Forein Aairs, acknowleded
that this leal stratey deliberately seeks
to “broaden [the Genocide Convention’s]
interpretation to encompass what is
happenin in Gaza”. Elsewhere he
acknowleded that “Under the Genocide
Convention, the thresholds are too hih”.
Aain the IICJ recent report reects this,
allowin admission of “circumstantial
evidence” of intent.
As a matter of principle, the ICJ has always
committed itself to preservin the unique
status of the crimes of enocide as distinct
from other crimes aainst humanity. So, as
a matter of practicality, it will strike a
balance by settin a hih standard to
preclude acts that are more properly
rearded as other international crimes from
bein treated as enocide while, at the
same time, not settin that standard too
hih, so as to make it impossible to
prosecute successfully enuine cases.
The current interpretation of “intent” has
perverse loic and allows, in principle, for
circumstances where a protected roup is
either exterminated entirely or in part
without the crime of enocide bein
committed. Such a conclusion would be
arrived at if it is shown that the destruction
of a roup can be said to be the unintended
consequence of, or incidental to, the pursuit
of other objectives.
Equally, the current jurisprudence allows
for the possibility of a defence aainst
accusations of enocide if the Palestinian
victims of Israel’s campain have been
killed not because they were Palestinian per
se, but because they were Gazans, which,
even thouh a subset of a protected class
of people, is not a protected class in itself.
In this reard, Kenneth Roth is hihly
critical of the ICJ’s position because “the
court’s rulin suests, anomalously, that
the war crime of forced displacement could
be a defense to a chare of enocide”.
More charitably, in order to preserve the
unique character of the crime of enocide,
the ICJ is reluctant to make a ndin of
enocide where international law provides
the possibility of ascribin the actions to
other international crimes. Such an
approach is supported by the International
Criminal Court — a separate international
tribunal — to issue arrest warrants for
Israel’s Prime Minister, Benjamin
Netanyahu, and Minister of Defence, Yoav
Gallant, for war crimes and crimes aainst
humanity, but not enocide.
Althouh in its recent advisory opinion on
climate chane the ICJ has shown itself
willin to take an expansive view of
international law, it is not a foreone
conclusion that its decision will alin with
the colloquial rather than the technical
denition of the word “enocide”. Philippe
Sands, who represents Gambia in its
enocide case aainst Myanmar, has
cautioned that: “over time, the concept of
enocide has emered in the collective
consciousness as if it were the crime of
crimes. The public focus is that the killin
of a lare number of people will always be
considered enocide. However, the
International Court of Justice restricts the
denition to a very limited number of cases”
The outrae that is a consequence of the
political loic of the competitive compassion
that marks Irish domestic discourse has
squeezed out consideration of nuance or
complexity on the subject. So much
emotional and political capital has been
expended in assertin enocide in Gaza
that very few are lookin to the actual
criteria that the ICJ is likely to assess for
provin that enocide under international
law.
By the same token, even if the ICJ were to
nd that neither Myanmar nor Israel has
committed enocide, that would by no
means be an absolution or vindication of
the oendin states; atrocities and mass
slauhter can constitute international war
crimes or crimes aainst humanity and the
fact that they do not qualify under the
Convention as enocides does not diminish
their seriousness. Whatever we call the
crime, the soil of Gaza is unlawfully
drenched in the blood of innocents.
Two WWII-era legal ideas
emerged simultaneously
Genocide (Raphael
Lemkin) — protects
groups. Crimes against
humanity (Hersch
Lauterpacht) — protects
individuals
Individual occurrences
of crimes such as rape,
looting, and pillaging
during wartime
ATROCITY CRIMES
WAR CRIMES
crimes (during war or peace)
that are widespread and
systematic
CRIMES AGAINST
HUMANITY
crimes with the
specific intent to destroy
racial, ethnical,
national, or religious
groups
GENOCIDE
