Whose reasonable inference? The ICJ’s Advisory Opinion and the threshold for apartheid’s mens rea

In the ICJ’s Advisory Opinion on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (“The OPT case”, July 2024), the court found, inter alia, that:

… Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD. (para. 229)

Article 3 of CERD condemns “racial segregation and apartheid” (emphasis added). The AO does not delve into the definitions of these crimes, presumably because of the diverging views of the judges. While most agreed about Israel’s widespread violations that constitute the actus reus of apartheid, they disagreed on whether the mens rea requirement was fulfilled. So, what is the mens rea for apartheid, and how do we ascertain it?

The mens rea for apartheid and the OPT case

Crimes against humanity, the category which apartheid falls under in the Rome Statute, broadly require the intent to commit the prohibited action(s) and knowledge of the context (Rome Statute, Articles 7, 30). While Apartheid is condemned in CERD and Additional Protocol I to the Geneva Conventions (1977), it is not defined. The two instruments that lay out the elements of the crime of apartheid are the Apartheid Convention and the Rome Statute. Article II of the 1972 Apartheid Convention states that apartheid consists of certain inhuman acts, similar to the policies and practices that were enacted in South Africa, “committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” (emphasis added) Article 9(2)(h) of the Rome Statute differs slightly, stating that these acts are “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime” (emphasis added). Here I will only focus on the intent/purpose, as that seems to mainly be where the judges differed.

The Rome Statute is concerned with individual criminal responsibility, while CERD relates to State responsibility. The Apartheid Convention is more of a hybrid treaty providing for state responsibility as well as individual criminal responsibility (Article 3; See also Judge Iwasawa, Separate Opinion, para. 12). Cases concerning state responsibility for genocide at the ICJ (Bosnia v. Serbia, 2007, Croatia v. Serbia, 2015) have referred to the jurisprudence of the ad hoc tribunals focusing on individual criminal responsibility (though this was criticized by Bosnia in the aforementioned case, see para. 208, and Croatia in Croatia v. Serbia, 2015, para. 127, 146); hence the mens rea of apartheid for the purposes of CERD may also build upon the mens rea as formulated in the Rome Statute. Indeed, many of the judges combined between the two. The formulation of the mens rea requirement differed slightly with the judges, and ultimately their finding of apartheid based on the standard of proof they adopted.

In his declaration, President Nawaf Salam expressed that Israel’s institutionalized commission of inhumane acts against Palestinians in the Occupied Territories “and its intention to maintain that régime, are undeniably the expression of a policy that is tantamount to apartheid” (President Nawaf Salam, Declaration, 19 July 2024, para. 29, emphasis added). Judge Nolte, on the other hand, doubted that Israel was committing apartheid based on the information the Court had. For the illegal acts to constitute apartheid, he stated that “the purpose of these acts is the establishment and maintenance of an institutionalized régime of domination and oppression (dolus specialis)” (Judge Nolte, Separate Opinion, 19 July 2024, para. 11, emphasis added). Judge Tladi, a South African who lived under apartheid, agreed with Judge Salam that Israeli practices in the OPT constituted apartheid, citing the “intentional effort to ensure separation of and discrimination between Israelis and Palestinians… for the purposes of establishing and maintaining domination by one racial group” (Judge Tladi, Separate Opinion, 19 July 2024, paras. 37, 39, emphasis added). For Nolte and Tladi, the mens rea includes “establishing and maintaining” while for Judge Salam, the mens rea is simply “the intent to maintain” the regime.

Judges Salam and Tladi did not use the term dolus specialis to describe the mens rea for apartheid, (possibly to avoid comparisons with the standard of proof required for genocide?), while Judge Iwasawa concurred with Nolte that, “Like genocide, the international crime of apartheid requires the presence of dolus specialis towards a particular group” (Judge Iwasawa, Separate Opinion, para. 12).

The definitions in the Apartheid Convention and the Rome Statute both center on the systematic, institutionalized, discriminatory and oppressive character of the inhumane acts, committed against a racial group (actus reus), and the purpose of domination over that racial group that those acts entail (mens rea). The next section explores the judges’ standard of proof establishing the mens rea.

The standard of proof – the only reasonable inference or one of many?

There are no international cases that expand upon the standard of proof for establishing the mens rea for apartheid. Broadly speaking, the standards adopted by the ICJ in varying cases include:

• Beyond reasonable doubt: Encapsulated in the “only reasonable inference” standard in the ICJ’s genocide cases, but others as well, including the Corfu Channel case (“evidence that is fully conclusive”, p. 17).
• Clear and convincing evidence: High probability, where the facts “are supported by convincing evidence” (Nicaragua v. United States of America, Judgment, 1986, para. 29).
• Preponderance of probabilities: More likely than not, where the court is convinced “on a balance of probabilities” (El Salvador/Honduras: Nicaragua intervening, 1992, para. 248).

The higher standards of proof generally apply to charges of “exceptional gravity” (Corfu Channel case, 1949, p. 17). The Court reiterated this in Bosnia v. Serbia, where it stated that “the Court requires proof at a high level of certainty appropriate to the seriousness of the allegation” (para. 210).

With regards to international crimes, it is well-known that genocide requires a dolus specialis – specific intent – to destroy, in whole or in part, the members of the targeted group. As for the standard, Judge Nolte expressed that:

… The Court should only find that a State has the required dolus specialis of apartheid when the “only reasonable inference” from its conduct is an intention to maintain an institutionalized régime to systematically oppress and dominate a racial or ethnic group, in Israel’s case the Palestinians relative to Israeli Jews. This dolus specialis should only be considered as being established where other inferences are clearly implausible. (para. 12, emphasis added)

Judge Nolte referenced para. 148 of the Croatia v. Serbia case, which stated that “in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question” (emphasis added).

Should the almost impossibly high threshold of genocide’s dolus specialis apply? Judge Tladi considered the issue differently. He clarified that:

… it should be recalled that it is not necessary for the purpose of establishing “the purpose of domination” for domination to be the sole, or even dominant reason, for the discriminatory measures. Apartheid South Africa, it will be recalled, promoted its policy not solely for the purpose of domination, but to ensure what it termed “equal but separate development.” (Judge Tladi, para. 40)

As far as atrocity crimes go, we often see that what differentiates genocide from crimes against humanity is the dolus specialis. In the Prosecutor v. Akayesu case (1998), the court clarified that “Genocide is distinct from other crimes insomuch as it embodies a special intent or dolus specialis.” (para. 498, emphasis added). Nonetheless, the high threshold required for genocide has been criticized at the ICJ, with a number of states expressing that the standards rendered “the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible” (Joint Declaration of Intervention by Canada, Denmark, France et al, The Gambia v. Myanmar, para. 51). Indeed, one wonders how apartheid as practiced in South Africa would have fared under this standard, as Judge Tladi rightly noted the apartheid government’s stated aims.

Judge Salam took an approach more akin to the ‘convincing evidence’ standard. He detailed the inhumane acts that were part of a systematic regime of oppression (paras. 23-27) and then showed that Israel intended to maintain that regime through, inter alia, its “policy of settlement expansion and annexation” (para. 28). He referenced numerous reports of UN Special Rapporteurs on the OPT, particularly since 2007, as well as international and Israeli human rights organizations (para. 30). It appears that, for Judge Salam, once the inhumane acts are committed within a context of institutionalized system of oppression and domination, the intention to maintain that regime was evidenced by both Israel’s policies and statements of governments officials. Other potential inferences were not necessary, since the evidence available already convincingly demonstrated the intent to dominate.

 Whose reasonable inference?

Returning to Judge Nolte’s ‘only reasonable inference’ standard, several issues come up. Nolte stated that because there could be other plausible justifications for Israel’s actions, such as security considerations and the desire to assert sovereignty over the West Bank that, while still disproportionate and/or illegal, the specific intent requirement for apartheid was not met (Judge Nolte, Separate Opinion, para. 13). He further stated that, “it is also possible that Israel does not intend the way in which it exercises its occupation of the West Bank, as regards the relationship between the Palestinians and the settlers, to become permanent and institutionalized” (para. 14). Judge Tladi, on the other hand, stated that it was,

… difficult to see how anyone can look at the policies and practices that have been detailed before the Court and find that, when taken together, the systemic character of these segregationist acts, including the explicit, legislated policy that self-determination in Palestine is reserved for Jewish persons only, do not reveal the purpose of dominating the Palestinians.” (Judge Tladi, Separate Opinion, 19 July 2024, para. 40; emphasis added)

Whose reasonable inference is it? Whether the threshold is as stringent as Judge Nolte asserts remains to be seen, but there are strong reasons to doubt the alternative inferences presented even if his threshold is adopted. First, Judge Nolte did not distinguish between motive and intent. The motive may be to annex the West Bank, but since Israel cannot do so explicitly, its intention is to establish/maintain the regime of oppression and domination to take hold of the West Bank. The ICTY explained the difference, stating that:

The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. (Jelisić case, Appeals, 2007, para. 49)

In the Stakić case, the Court explicitly noted alternative inferences. In that case, it was a “feared Bosnian Muslim attack.” Yet the court stated that:

Even if such an inference was reasonable, which it is not necessary to decide here, it would in no way negate the evidence that led the Trial Chamber to conclude that there was a Common Purpose. At most, it may be informative as to part of the motive underlying the Common Purpose, but it does not undermine the inferences drawn from the evidence above. (Stakić case, Appeals Chamber, para. 226, emphasis added)

Similarly, annexing the West Bank does not undermine the establishing and/or maintaining a system of apartheid; they are, in fact, quite complementary.

Second, regarding security specifically as a plausible purpose of the inhumane and discriminatory acts, security is a broad notion that has notoriously been used to justify heinous crimes, including genocide (see Jonathan Maynard, 2022; Dirk Moses, 2021). In the words of Dirk Moses, “security and self-defense imperatives have authorized Western conquest and occupation for half a millennium” (Dirk Moses, 2017, p. 382). Because security is generally accepted as a legitimate aim of any state, it is easy to use it as a pretext, effectively precluding any specific intent. Judge Tladi addressed this directly, stating “that security interests as such, no matter how serious or legitimate, cannot override rules of international law…” (para. 44).

There is currently a domestic case in South Africa, the COSAS 4, concerning the 1982 kidnapping and murder of anti-apartheid activists. The accused were refused amnesty by the South African Truth and Reconciliation Commission, and they now face several charges, including apartheid based on customary law. It will be interesting to see how the courts expand upon the mens rea in that case. But it seems untenable to raise the standard for the mens rea element of apartheid to essentially be able to find that, due to the existence of some (perhaps) plausible inferences for the racist practices, the threshold for apartheid is not met.