Since 1993, the International Court of Justice [‘ICJ’] has accepted jurisdiction to hear a few cases alleging genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide 1951 [“Geneva Convention”]. Very recently, South Africa instituted proceedings against Israel on 29 December 2023, alleging that:
‘acts and omissions by Israel . . . are genocidal in character, as they are committed with the requisite specific intent . . . to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group’.
On 26 January 2024, the ICJ in its provisional measures order. concluded that it has the jurisdiction to hear the case (paras 31-32). This means the case moves forward to the next stage, a merits (final) hearing, unless Israel brings preliminary objections to the proceedings. At the merits stage, the Court has to decide two essential components, 1) whether genocide has occurred 2) whether the respondent State (Israel in this matter) is responsible for it. This is not the only case the ICJ will hear under the Genocide Convention in the future. The ICJ will hear The Gambia v Myanmar and Ukraine v Russia [2022] and has previously adjudicated on Croatia v Serbia [2015] and Bosnia v Serbia [2007].
This article seeks to discuss the criteria the Court will use to decide whether Israel is responsible for a genocide against the Palestinian population in Gaza., The ICJ requires that a state must have ‘dolus specialis’, or a ‘special intent’, to commit genocide. This criteria can only be satisfied if the evidence is ‘fully conclusive’ of the special intent to commit genocide (para 209, Bosnia; para 178, Croatia). ‘Fully conclusive’ is a very high standard of proof; in the only judgments handed down in genocide cases by the ICJ to date, the ICJ held this standard has not been satisfied. Though Serbia brought a counterclaim against Croatia alleging genocide, in the Croatia 2015 case, the scope of this article does not extend to a discussion on the counterclaim (para 446, Croatia).
The article aims to discuss how the standard has been applied in the Bosnia and Croatia case, focusing on the evidence used and the ICJ’s reliance on international criminal tribunals’ findings throughout the cases. It will also analyse how this will affect the ICJ’s approach to the same question in South Africa’s case against Israel.
Background
Facts: Bosnia v Serbia [2007] and Croatia v Serbia [2015]
The brief circumstances surrounding both the cases are that in 1991 Croatia declared independence from the Socialist Federal Republic of Yugoslavia [“SRFY”]. Later in the year Bosnia followed suit as well. This left Serbia and Montenegro in the region to form the Federal Republic of Yugoslavia [“FRY”]. After the separation of the states, a civil war broke out in the region, leading to Bosnia and Croatia initiating separate claims of genocide at the ICJ for the atrocities committed by Serbia between 1991-1995. The civil war led to a series of atrocities that were committed in various different areas and camps in the region, like the particular areas of of Eastern Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia (para 295, Croatia) and Srebrenica (para 278, Bosnia).
The law
Genocide is defined under Article II of the Geneva Convention ‘as 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’.
The ICJ agreed that in both cases, a large number of ethnic Croatians were killed (para 224, Croatia) and a massive number of Bosnia Muslims were killed during the conflict (para 276, Bosnia). It was accepted that ‘massive killings’ of members of an ethnic and religious group had occurred. The Court then had to answer the question; who committed them? If it was a state, the ICJ had to examine whether a state had a ‘special intent’ to commit those acts, and if yes, whether the genocidal acts were attributable to a state. In this case, after establishing that genocidal acts had occurred by various groups/entities and individuals in Serbia, the actual issue arose in attributing the unlawful act of genocide to Serbia.
The ICJ had to determine the standard of proof by which it would determine the allegations of genocide in both cases. The ICJ referred to the Bosnia judgment in which it cited the Corfu Channel case [1949]. In Bosnia, it held that ‘claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive’ (para 209, Bosnia), (para 178, Croatia). The ICJ was not satisfied that the ‘fully conclusive’ standard had been met and that Serbia had a dolus specialis, a special intent to carry out genocide in both cases.
In Croatia v. Serbia, it was held that the actus reus of genocide was established under Article II(a) and (b) (para 401) in certain areas of the region but the overall claim claim did not succeed as Crotia could not establish that Serbia had been accompanied by the required specific intent to destroy the group (para 440). In Bosnia v. Serbia it was held that the killings in Srebrenica in July 1995 constituted genocide as they were committed with the specific intent to destroy the group (para 297). However, Serbia as a state was not held to be responsible for these acts. This was decided by the ICJ under the law of state responsibility whereby a state conducts an internationally wrongful act by breaching an international obligation and the breach is attributed to it (para 415). The complexity in these cases and the fine distinction drawn between attributing conduct to the respondent state and conduct which cannot be so attributed makes it challenging to determine, with some certainty, as to what type of conduct or evidence will be ‘fully conclusive’ to hold a state to have a special intent to commit genocide.
I will now illustrate the evidence explored by the ICJ in the Bosnia and Croatia case, the probative value the ICJ attached to it, and why the evidence was not ‘fully conclusive’ of Serbia’s ‘special intent’ to commit genocide in Srebrenica.
Evidence in the 2007 Bosnia case and 2015 Croatia case
Role of the International Criminal Tribunal for Yugoslavia [“ICTY”]
An essential consideration in both the cases were the parallel trials at the ICTY which was trying individuals for war crimes, crimes against humanity and genocide committed during both conflicts. The ICTY applied a criminal standard, whereby the prosecution had to satisfy the court ‘beyond a reasonable doubt’ that a crime was committed by the accused. Though the ICJ’s standard was under the law of state responsibility and not a criminal standard, both the ICTY and ICJ’s standards were similarly high. The ICTY’s findings were accepted by the ICJ as ‘highly persuasive’ (para 223, Bosnia) and the ICJ concluded that ‘any evaluation by the Tribunal based on the facts as so found for instance about the existence of the required intent, is also entitled to due weight’ (para 223, Bosnia).
The ICTY’s finding shaped the evidentiary matters at the ICJ for a few reasons; the ICTY conducted separate trials for each accused, diligently looked at a multitude of evidence and most importantly, established the ‘intent’ of each individual. This is not something that can be done vastly at the ICJ: though witnesses give evidence at the ICJ, providing evidence via oral or written testimony does not equate to a whole trial dedicated to that particular witness, as was done at the ICTY.
The ICJ can conduct fact-finding in many cases, but this is usually done based on documentary evidence, rather than oral evidence at court. Even in the absence of a separate trial, if the ICJ concludes that some perpetrators possessed genocidal intent, there is another bridge to cross. The perpetrators should have a relationship with the respondent state (para 385 and 386 Bosnia), or in the absence of this, the respondent state must have ‘effective control’ over the perpetrators. The ICJ again adopted the high ‘effective control’ test from the Nicaragua case rather than the ‘overall control’ test in the Tadić case.
What type of evidence would constitute ‘special intent’?
- Pattern of conduct
There are no rules or guidelines which clarify that a certain type of evidence, if shown, will be ‘fully conclusive’ of the ‘special intent’ to commit genocide. For example, it is highly unlikely that the Court looks at all the highly confidential documents of a state’s foreign policy, external affairs and a plan of action in a conflict. This is because the Statute of the Court does not mention any obligation or rules on disclosure of documents, though the Court has previously encouraged such disclosure and stated that the respondent should cooperate in providing ‘such evidence as may be in its possession that could assist the Court in resolving the dispute’. In the absence of direct evidence, the applicant can guide the Court to look at a pattern of conduct.
‘The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly stated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent’. (para 373, Bosnia).
The ‘protected group’ in South Africa v Israel would be the Palestinians. To further explain, if Israel at the merits stage illustrates that its pattern of conduct was not to harm Palestinains but to destroy Hamas, which Israel will most definitely argue, then Israel’s pattern of conduct since October 7 would not be ‘fully conclusive’ to show that Israel committed a genocide of the people of Palestine. This is how high the standard of proof is.
There are two things that Croatia put forward in an attempt to prove such special intent though a pattern of conduct.
- Context: ‘Croatia relied on a memorandum prepared in 1986 by the Serbian Academy of Sciences and Arts (hereinafter “the SANU Memorandum”), which allegedly contributed to the rebirth of the idea of a “Greater Serbia’ (para 420, Croatia). It also noted that ‘the SANU Memorandum cited by Croatia has no official standing and certainly does not contemplate the destruction of the Croats’ (para 422, Croatia). The Court relied heavily on the findings of the ICTY to see the purpose behind the SANU memorandum. Through individual testimonies, the ICTY found that the intention behind the memorandum was not to destroy the Croats, and the idea of a ‘Greater Serbia’ does not prove that (paras 424-428, Croatia). Recently Prime Minister of Israel, Netanyahu claimed there is ‘no space’ for a Palestinian State, in translation, for there to be no Palestine, the Palestinians would either have to be destroyed or driven out of Palestine. It would be interesting to see if the ICJ can infer a more direct intention to destroy Palestinians from this statement and many statements like this, contrary to what it did in Croatia’s case. It could be that driving them out of Palestine is held as a crime against humanity committed by Israel, but the ICJ cannot hold Israel liable for it as it can only adjudicate whether genocide has occurred.
- Opportunity: Croatia stated the Serb forces systematically committed the acts constituting genocide, when they had an opportunity to do so, by displacing Croats. The Court referred to the ICTY findings and stated,
forced displacement was the instrument of a policy aimed at establishing an ethnically homogeneous Serb State. In that context, the expulsion of the Croats was brought about by the creation of a coercive atmosphere…it was not a question of systematically destroying that population, but of forcing it to leave the areas controlled by these armed forces’ (para 435, Croatia).
Thus the Court concluded, the only reasonable inference drawn from this conduct is not that the Serb forces wanted to destroy the Croats population, but that they wanted to force the Croats to leave certain areas to form their own state. In South Africa v Israel, the ICJ may either deduce that Israel wanted to force the Palestinians to leave or it could deduce that this amounted to an attempt to destroy the Palestinian people. Again, the requirement is the incredibly high motivation of destruction, and not just displacement.
In the The Gambia v Myanmar case, many states including France, Germany and the United Kingdom submitted a joint declaration ‘directed at the questions of construction of the Genocide Convention arising in this case’ (para 14). Particularly on the question of specific intent, the Declarants submitted that:
‘Because direct evidence of genocidal intent will often be rare, it is crucial for the Court to adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible’ (para 51).
The Declarants further submitted that taking the test of reasonableness from Bosnia (para 373) and Croatia (para 148) which essentially states, the ‘only inference that could reasonably be drawn’ from a pattern of conduct should be of genocidal intent, the Court can draw a balanced approach in drawing special intent to prove genocide. They suggested that:
‘when determining whether or not specific intent can be inferred from conduct, a court or tribunal must weigh the evidence before it and filter out inferences that are not reasonable’ (para 52).
This reserved approach in inferring genocidal intent from a pattern of conduct may assist in narrowing acts, making it easier for ICJ to assess conduct that is ‘reasonable’, but it is yet to be seen whether the ICJ adopts these declarations in its future hearing in The Gambia v Myanmar case. It is interesting, however, that Germany has indicated its willingness to intervene on Israel’s behalf and yet has tied itself given its above declaration to a more reasonable construction of the Genocide Convention; one which does not ‘make findings of genocide near-impossible’.
Witness statements/reports/plans/statements
Official statements
Bosnia referred the court to the statements published in the Official Gazette of the Republika Srpska. One of these statements was; ‘We certainly know that we must give up something — that is beyond doubt in so far as we want to achieve our first strategic goal: to drive our enemies by the force of war from their homes, that is the Croats and Muslims’ (para 372, Bosnia). Serbia contended that this was translated wrongly and the goal was not to drive enemies out of the state but to free the homes from the enemy. The Court did not find special intent in this statement. However, it is critical to question the fact that it will be very rare to find statements that directly speak of the respondent states plan and/or intentions, but the ICJ has not been flexible in the past in inferring intention.
The ICJ can acknowledge in the upcoming hearings that a larger goal for the respondent state can be, for example, to make their own state, like Serbia intended. However, a respondent state can also commit genocide in the process of achieving the larger goal. It seems that previously, Serbia intended to displace Croats and Bosnian Muslims to make its own state; however, they could not do that without displacing Croats, in the process of which many were killed. The two goals, specific in their own way, could go in conjunction with each other. For instance, an initial goal of displacement could give way to a means of destruction. In such a case, it may be that the standard of proof can in fact be satisfied.
Reports from official bodies
With regards to reports from official or independent bodies, the ICJ looks at the ‘1) source of the item of evidence 2) process by which it has been generated, and 3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts)’ (para 135, Bosnia).
Witness statements
Neither the Court’s Statute nor its Rules set out any requirements for the admissibility of witness statements, but ‘The Court cannot accord evidential weight to those statements which are neither signed nor confirmed’ (para 198, Croatia) and if the witness in question has testified before the ICTY, the Court accords evidential weight to it.
In a conflict, especially as destructive as the one in Gaza, there is no guarantee of gathering evidence of probative value, even if there are witness statements. Furthermore, even if those statements are signed and confirmed as the ICJ requires them to be, the respondent state will often shed doubt on their credibility. In Gaza, most things are being documented on social media, and with the pace and gravity of the conflict, it is hard to suggest how many witnesses will be able to testify in the future. This is one way the evidence is impacted. In the case of Ukraine v Russia, Russia’s legal team was a ‘no show’ at the provisional measures hearing, and also failed to comply with the measures. There is a frequent history of non-compliance with the ICJ’s orders. Unlike the ICTY, the ICJ could not issue subpoenas for witnesses either. The absence of witnesses, lack of compliance and procedure to bring the witnesses to court, makes the already high threshold, even harder to satisfy.
In Bosnia and Croatia’s cases the victims were not completely left without reparations or justice because the ICTY existed to penalise individual perpetrators. In the current case, the Palestinians will be looking to the ICJ as well as the International Criminal Court which also has an open investigation into the case. The ICC Prosecutor has indicated that Palestine is a priority for him, despite much criticism regarding his inaction in this case. While the ICC issued an arrest warrant for President Putin of Russia, we will have to wait and see whether it will issue an arrest warrant for Prime Minister Netanyahu. It will be a difficult course as many powerful nations like the UK and the USA stand with Israel. Unlike with President Putin, the ICC may face their criticism and sanction if it does act against Israeli officials.
Further challenges
To put all this further in context, despite the existence of ICTY’s detailed findings, the Court did not find the evidence in Bosnia and Croatia’s cases to be fully conclusive of a special intent to commit genocide on the part of Serbia. There are currently three cases brought under the Geneva Convention that potentially await a Merits hearing at the ICJ, South Africa v Israel [2023] Ukraine v Russia [2022], The Gambia v Myanmar [2019]. Cases at the ICJ are brought by one state against another, as the ICJ cannot try individuals and consequently does not collect evidence on its own initiative like a prosecutor would. In this scenario the ICC may play a role in the ICJ’s cases due to it’s ongoing investigation on the crimes, war crimes and acts of genocide committed in Myanmar, Palestine and Ukraine.
Though undoubtedly, collecting evidence is different from a trial like at the ICTY where evidence goes through scrutiny and examination, it does not leave the applicant state completely hopeless. The question remains that if with the existence of hefty evidence and findings of the ICTY, the ICJ did not hold Serbia liable for genocide, would South Africa, Ukraine and The Gambia satisfy the very high standard of proof with the support of ICC’s investigations.
Though the scope of the article to discuss genocide cases at the ICJ, it is noteworthy to mention the UN Commission of Inquiry on Darfur [‘Commission’] that was created in 2004 to establish whether the Government of Sudan ‘pursued of a policy of genocide’ against ethnic African or black people during the conflict in Darfur. The Commission found in 2005 that despite the gravity of crimes, the unlawful acts could not constitute genocide as the ‘crucial element of genocidal intent appears to be missing as far as the central Government authorities are concerned’ and that ‘the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent’ (para 640 of the Commission’s Report). It concluded on the question of intent by reasoning that ‘those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare’ (para 640 of the Commission’s Report).
It is prudent to mention the inquiry of the Commission for a few reasons. The Commission explicitly focused on the actions of the central government in assessing whether Sudan had committed genocide. This evidently reduces the pool of perpetrators, through whom intent to commit genocide could be established. This was a different approach than taken by the ICJ as the ICJ focused on the intent of perpetrators who could be anyone from a state for alleged acts of genocide instead of limiting its examination to perpetrators belonging to any one institution, like the central government.
Secondly, the Commission and the ICJ in their respective situations tried to find ‘special intent’ whose only inference from a pattern of conduct can be an intent to commit genocide and no other coexisting intent, that could be to steal land or cause insurgency (page 308). Again with the smaller pool of perpetrators than that assessed by the ICJ, the Commission could not infer special intent, this further reflects on the practical application of the high standard of proof.
Lastly, the ICJ is not a criminal court. It hears contentious cases between states. Provided states can only commit international wrongful acts, it is not wholly appropriate to apply a criminal standard of proof. ICTY can apply such a high standard as it is equipped with rules of evidence, resources of the prosecutor and procedure of a trial to deduce the intention of each individual.
Future of the genocide cases and conclusion
The standard of proof is not only very high, but it almost sets up the applicant state at the ICJ for failure. The ICJ can only address the very limited question of whether a particular state has committed genocide. It cannot go on to consider any lesser unlawful act such as crimes against humanity by its own initiative.
The merits judgment in The Gambia v Myanmar [2019] and Ukraine v Russia [2022] and especially South Africa v Israel [2023] will take years to come and much will change in the on-ground situation but much may not change in the way these cases are decided if the standard remains so high that no state can satisfy it. The critical question is what approaches should the ICJ take going forward in the future cases.
One reference can be taken from the Joint Declaration of Intervention in The Gambia v Myanmar:
‘When assessing whether specific intent can be inferred, a court or tribunal must assess the evidence available to it comprehensively and holistically….In this respect, the Declarants agree with the approach of the ICTY Appeals Chamber, which required trial chambers to assess “whether all of the evidence, taken together, demonstrated a genocidal mental state,” while noting that a “compartmentalized mode of analysis [would] obscur[e] the proper inquiry” (para 54)
This flexible approach creates room for a possibility that states can satisfy the court to the high standard of proof, otherwise if the standard remains so high, almost being unattainable, then what purpose does a crime serve if no state could have committed it?
