Legal Standard for Genocide Intent: An Uphill Climb for Israel in Gaza Suit

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A critical issue in South Africa’s case against Israel for genocide in Gaza is the required intent to destroy a group, or at least a portion of a group. The International Court of Justice has said already that it is plausible that Israel harbored such intent. (Order, 1/26/24) If the case proceeds to the merits, the Court will be asked to make a definitive finding on Israel’s intent. Israel could be found to be in violation of the Genocide Convention either if such intent, along with the requisite acts, can be attributed to it as an entity, or if such intent and the requisite acts can be attributed to particular military units under Israel’s command.

The intent in question is additional to that required for the acts prohibited by the Genocide Convention. For genocide liability, at least one of five specified acts must be committed against members of a national, ethnic, racial, or religious group: killing, causing serious harm, deliberately inflicting conditions of life calculated to bring about physical destruction in whole or in part, preventing births, or transferring children out of the group. These acts are listed in Article II, as paragraphs (a) through (e). South Africa claims that Israel has killed Gazans (para. “a”), that it has caused harm to others (para. “b”), and that it has inflicted “conditions of life” (para. “c”).

Double intent

The additional intent is specified in the Genocide Convention as an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Genocide thus requires what has been called a “double intent.” (K. Ambos, What Does ‘Intent to Destroy’ in Genocide Mean, International Review of the Red Cross, 2009, at 834)

Where the act is killing or causing other harm, the centrality of the additional intent is apparent, because those acts can readily be perpetrated for reasons apart from an intent to destroy the group. But with Article II(c), group destruction is mentioned in the definition of the act. The terms “deliberately” and “calculated” imply an awareness that the conditions may be lethal to the group.

The ICJ has not found violations of Article II(c), hence has not had to resolve the additional intent required. The International Criminal Tribunal for Yugoslavia has made findings of “conditions of life” but then has declined to convict for genocide by saying that the underlying intent was to displace, not to destroy. (ICTY, Brdjanin, IT-99-36-T ¶¶969, 976; ICTY, Krajisnik, IT-00-39, ¶¶867, 1091, 1125; ICTY, Stakic, IT-97-24, ¶¶554, 557, 560)

Intent to destroy as applied to Gaza

The International Court of Justice, of course, need not follow the Yugoslavia tribunal. Not only was the latter a different court, but it was adjudicating criminal liability, where the principle in dubio pro reo requires favoring the accused on issues of construction. In the Gaza litigation, the ICJ is adjudicating the liability of a state. The two situations call for different canons of treaty construction. (P. Behrens, Between Abstract Event and Individualized Crime: Genocidal Intent in the Case of Croatia, 28 Leiden J. Int’l L. 329 (2015)).

Moreover, the factual situations in Gaza differ markedly from those in Bosnia. In the latter, “conditions of life” were being inflicted on discrete numbers in particular towns or detention centers, whereas in Gaza, they were being inflicted on nearly the entirety of the population. Hence, whereas in the Bosnia situation it could be concluded that the conditions were being inflicted on some, in order to encourage flight by from the broader group, in the Gaza situation there was no broader group.

In Bosnia, the overall population had a physical option to flee the conditions, whereas in Gaza they did not. The Gazans, on the contrary, were being forced into the very conditions that were calculated to bring about their destruction. The most salient circumstance inflicting “conditions of life” onto the Gaza population was the evacuation orders issued by the Israel Defense Force at various times beginning on 13 October 2023. Gazans, irrespective of age or physical condition, were ordered to depart on short notice under circumstances in which they would be deprived of means of sustenance. The World Health Organization denounced the evacuation scheme as a “death sentence.” (WHO, Evacuation orders by Israel to hospitals in northern Gaza are a death sentence for the sick and injured, Oct. 14, 2023). The United Nations said that the initial evacuation order, as issued to the population of northern Gaza, would have “devastating humanitarian consequences.” (UN says Israeli order to evacuate northern Gaza within 24 hours is “impossible,” Oct. 13, 2023).

South Africa stated in its Application Instituting Proceedings against Israel (Application ¶61) that the initial evacuation order came shortly after Israel imposed what South Africa called a “complete siege” that would prevent delivery of fuel, water, or food. (CNN: Israel defense minister orders “complete siege” of Gaza, Oct. 9, 2023). The “conditions of life” being inflicted were such that it had to be realized that destruction result. Infrastructure was demolished by the IDF. Roads and water lines were ripped up. Residential and other structures were demolished. The Gaza population had no escape from conditions bringing destruction. South Africa was using the term “siege” differently from its usage in warfare, where a population is surrounded and is deprived of  means of sustenance as a tactic to force capitulation. In that situation, the intent is to pressure a population to surrender, not to destroy it.

The knowing creation of such conditions by Israel creates a strong presumption of intent to destroy. An assertion by Israel that it was exercising self-defense does not avail, nor does a suggestion of equivalence for what had been done by Hamas. Genocide is specifically prohibited in wartime, regardless of whether by an aggressor or defender. Israel may assert that it needed to evacuate the population because its adversary, Hamas, was embedding itself in the population. South Africa can reply that doing so precipitously in circumstances in which the population could not sustain itself nonetheless bespoke an intent to destroy. Israel may assert that it provided safe zones, but South Africa can cite information from UN officials that these zones were not safe. Israel may assert that the humanitarian plight of the civilian population was occasioned by Hamas siphoning off aid that was delivered, but South Africa can counter it was the resulting desperation of the population that impeded delivery.

The additional intent must be reliably proved. It must be the only reasonable inference to be drawn. (Croatia v. Serbia, Judgment, 2007, ¶148) The “conditions of life” must have been inflicted with awareness that destruction would follow, and there must have been no expectation that an intervening act, such as a surrender, would avert destruction.

The additional intent for a “conditions of life” violation

The International Court of Justice has not previously dealt with the additional intent for a “conditions of life” claim on facts like those in Gaza. Its only general statement of the standard for additional intent came in regard to Article II(a), when it said:

“It is not enough to establish, for instance in terms of paragraph (a) [of Article II], that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis”. (Bosnia v. Serbia, Judgment, 2007 ¶187)

Where the act is one of killing, the Court has said that if intent cannot be shown directly, it can be shown by the extent of the killing. In Croatia v. Serbia, it said (¶139) that for proof of the additional intent:

“in the absence of direct proof, there must be evidence of acts on a scale that establishes an intent not only to target certain individuals because of their membership to a particular group, but also to destroy the group itself in whole or in part.”

But where the act is “conditions of life,” no deaths are required for a finding of liability for genocide. (ICTY, Tolimir, IT-05-88/2-A ¶228; M.C. Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal, 1987, at 143) Ensuing deaths, to be sure, and  they are numerous, provide proof that there must have an expectation of destruction.

In Bosnia v. Serbia, the Court analyzed the siege of  towns under Article II(c) but declined to find that Article II(c) had been violated, saying that it would reserve that issue but finding that even had there been a violation, the intent to destroy was not present. (Judgment 2007 ¶328) The Court also considered under Article II(c) the detention camps as described by the ICTY. The Court declined to find a violation of Article II(c) but said that in any event the additional intent was not proved. (¶354) In Croatia v. Serbia, the Court was explicit in stating that Article II(c) had not been violated. (Judgment 2015, ¶¶394, 499) The Court found a violation for killing (¶401) and analyzed the additional intent in that context only. Thus, in the Serbia cases, there has not been a need to analyze the additional intent upon a finding of a violation of Article II(c).

Proof of the additional intent from circumstances

In the two Serbia cases, the Court, as indicated, used the Latin phrase dolus specialis and two adjectives (“specific” and “special”) to describe the required additional intent. None of these terms appear in the text of Article II. The Court’s apparent aim behind inserting these terms was to show that intent as mentioned in the chapeau to Article II is additional to the intent required for the act itself. If the Court meant to specify a particular level of intent, it did not say so. Importantly, however, the Court said that this additional intent can be inferred from conduct. (Croatia v. Serbia, Judgment 2015 ¶145)

That view of how intent is proved is consistent with the way the term “intent” is used in domestic courts in the criminal law context. “Intent” may signify an action taken with a purpose to achieve a given result, but the term includes as well an action taken with awareness that a given result will follow. The additional intent for genocide is a state of mind that accompanies the requisite acts. In that regard, it is unlike the intent required under a criminal statute prohibiting, for example, assault with intent to kill, where the actor assaults while anticipating a harm to the victim beyond the harm involved in the assault. The additional intent for genocide relates instead to what is anticipated to result from the underlying act. The act is part of the destruction of the group of which the victim is a member. The District Court of Jerusalem, in convicting Adolf Eichmann of genocide, explained that “the people, in whole or in part, is the victim of the extermination which befalls it in consequence of the extermination of its sons and daughters.” (A-G v. Eichmann,  Judgment 1961 ¶190) The group, in other words, becomes a secondary victim upon performance of the act.

The Yugoslavia and Rwanda tribunals have devoted little specific attention to additional intent as relates to conditions of life. (P. Behrens, The mens rea of genocide, in P. Behrens & R. Henham, eds., Elements of Genocide, 2013, at 723) They have, nonetheless, followed the broader approach to intent in resolving the additional intent for genocide. (O. Triffterer, Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such, 14 Leiden J. Int’l L. 405 (2001)) When a trial chamber of the Rwanda tribunal convicted Jean-Paul Akayesu of genocide, it referenced the term “dolus specialis” as well as the term “special intent.” (ICTR, Akayesu, 96-4-T ¶517, 1998) “Special intent,” it said (¶518), is a term found in Continental penal law. Applying that term to the Genocide Convention, the chamber said (¶520), “The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group.” Akayesu knew that destruction would result, the chamber was saying, but even if he did not know, he should have known in light of circumstances obvious to him. The Akayesu chamber said that liability could be found where Akayesu “should have known” even though it was dealing with a criminal prosecution, where the principle in dubio pro reo favors the accused in construing crime definitions. In the International Criminal Tribunal for Yugoslavia, the same approach to proof was taken, namely, that the “specific intent” can be “inferred” from the “general context.” (Jelisić, ICTY IT-95-10-A ¶47)

Drafting history on the additional intent

The Genocide Convention’s drafting history confirms that awareness of a result suffices for the element of additional intent. The UN Secretariat, which produced a draft of a genocide convention in 1947, had the relevant phrase reading “with the purpose of,” in its English language rendition, and “dans le but de” in its French rendition. (UN Doc. E/447, 6/26/47) An ad hoc committee of states set up in 1948 by the UN Economic and Social Council to continue the drafting process, however, used the formulation “with the intent to” destroy. (UN Doc. E/AC.25/12, 5/19/48; UN Doc. E/794, 5/24/48). The ad hoc committee specifically voted down a proposal “that the words ‘for the purpose of destroying’ be substituted for the words ‘with the intent to.’” (UN Doc. E/AC.25/SR.24, 5/12/48) The General Assembly’s Sixth (Legal) Committee, which finalized the text of the Genocide Convention later in 1948, stayed with the ad hoc committee’s approach, settling on “with intent to” destroy. (UN Doc. A/C.6/289, 11/23/48) So both approaches were on the table, and a choice was made not to require a purpose to destroy. The obvious conclusion is that purpose was rejected as the standard.

A published commentary on the Genocide Convention concludes, to the contrary, that purpose was the standard intended by the drafters. That commentary, however, fails to mention the vote in the ad hoc committee rejecting “purpose.” (Lars Berster, “Article II” in Christian J. Tams, Lars Berster, Björn Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: a commentary, 2014, at 93-95) Another analyst of the Genocide Convention finds no clear idea of what the drafters meant by “intent,” but that they did not specify a standard of “purpose.” (Alexander K.A. Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99 Columbia Law Review 2279 (1999))

Whatever the drafters had in mind, they were functioning in a criminal law context. The Genocide Convention was written as a penal statute. So the drafters had to be cautious not to cast the net of liability too widely. Whatever standard they intended need not necessarily apply in the state responsibility context. The insertion of state responsibility into the Genocide Convention came only at the eleventh hour in the drafting process, when a mention of state responsibility for genocide was written into Article IX, the dispute resolution clause. State responsibility for a state’s own commission of genocide is not expressly mentioned in the substantive provisions of the Genocide Convention.

The task before the court

On a genocide claim like South Africa’s, where liability of a state is at issue, the considerations are strong for a broad reading of “intent.” Such a reading comports with the object and purpose of the Genocide Convention as the Court has identified it. In the advisory opinion it issued on the Genocide Convention in 1951, the Court said that the treaty’s “humanitarian and civilizing purpose” provides “the foundation and measure of all its provisions.” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, at 23, 1951) That injunction includes its provision on additional intent.

In Bosnia v. Serbia, the International Court of Justice relied heavily on the fact-finding done by the ICTY. The Court itself lacks the capacity for detailed fact-finding. For Gaza, the Court will have no such ready base of facts. The Court will have to find facts based on what the two parties present. South Africa will be able to present considerable evidence of knowing destruction, from the mouths of UN officials and representatives of non-governmental aid organizations. Whereas in Bosnia, the warnings coming from the United Nations were of ethnic cleansing, in Gaza the warnings were of death. The population was knowingly thrust into a situation from which many would not be able to survive. The “conditions of life” were imposed not merely on discrete sectors of the group, but on its entirety. Israel had control over both egress and ingress from the relevant territory. No intent alternative to that of destruction was apparent. South Africa’s claims against Israel present a “conditions of life” situation like none the International Court of Justice has seen.

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Mary Ellen O'Connell says

March 14, 2024

Dear John,

Many thanks for this precise and compelling delineation of the intent standard for a state charged under the Genocide Convention. I might add one additional point, which supports your conclusion. Because this is an inter-state case and not a criminal prosecution, the standard of proof is by clear and convincing evidence, not proof "beyond a reasonable doubt." South Africa need only provide clear and convincing evidence of the acts and two elements of intent to prevail.

See Mary Ellen O'Connell, Evidence of Terror, Journal of Conflict and Security Law, Volume 7, Issue 1, April 2002, Pages 19–36, https://doi.org/10.1093/jcsl/7.1.19

Gratefully,

Mary Ellen