Party Presentation

At the ICJ, contentious cases are brought by one State (the applicant) against another (the respondent). The parties present evidence and offer competing explanations of the evidence presented. The Court evaluates the evidence presented to it and considers the explanations offered to it, applying the relevant standard of proof. Each party is master of its own case. Each party is responsible for presenting the evidence and arguments that it wishes the Court to consider. And each party responds to the evidence and arguments presented by the opposing party. The parties present, and the Court decides. This is the principle of party presentation.

Party presentation respects the autonomy of each State to speak in its own voice, whether to allege a violation of its rights or to offer its own account of its conduct, in its own words. Party presentation also facilitates reliable truth-seeking, by clearly defining the issues in dispute so they may be tested through an adversarial process, with each party afforded an opportunity to challenge the evidence or arguments presented by the other. Consider the alternative. Imagine the Court issues a judgment in which it gives decisive weight to evidence not presented by either party, or to an explanation of the evidence not offered by either party. The losing party would be denied the opportunity to contest the reliability of the evidence or the plausibility of the explanation, including the opportunity to gather and present further evidence that might have persuaded the Court. Even the prevailing party may consider their victory a partial defeat, as it may be based on an account of its actions that it rejects. Wisely, the Court typically adheres to the principle of party presentation. (For an arguable exception involving Court-appointed experts, see here.)

In a genocide case, the applicant presents evidence and offers one explanation of the evidence: that the respondent’s officials (or other individuals under the respondent’s effective control) committed genocidal acts with genocidal intent. The respondent may or may not present evidence but, in any case, will offer a competing explanation of the evidence before the Court: that the acts were not committed by its officials (or others it effectively controlled), that the acts were not committed at all, or that the acts were committed with a different intent. The Court evaluates the competing explanations under its established standard of proof. If the Court is fully convinced by the applicant’s explanation of the evidence, then the Court should find that the respondent committed genocide. In contrast, if the Court finds that the respondent’s explanation of the evidence is reasonable, then the Court will not find the applicant’s explanation fully convincing.

Put another way, the Court will not find that a State acted with genocidal intent if another reasonable inference may be drawn from all the evidence before it. But that State must present an alternative inference to the Court and explain why it is reasonable in light of all the evidence. If the State fails to present the Court with a reasonable alternative inference, then it should not expect the Court to find one on its own.

In Bosnia v. Serbia, the Court noted that Serbia’s position “changed in a major way” during the oral proceedings, and “based itself” on the trial and appellate judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY). These ICTY judgments found that the relevant acts of violence were committed with genocidal intent in Srebrenica, but were committed with the intent to displace rather than destroy the Bosnian Muslim group in other regions. The Court agreed. The Court was fully convinced that the Srebrenica massacre was committed with genocidal intent, but found that in other regions “an essential motive of much of the Bosnian Serb leadership—to create a larger Serb State, by a war of conquest if necessary—did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion.” These objectives “were capable of being achieved by the displacement of the population and by territory being acquired, actions which the Respondent accepted (in the latter case at least) as being unlawful.” The Court appeared to accept Serbia’s explanation of the evidence, and found that Serbia had not committed genocide or failed to prevent genocide except in Srebrenica.

In Croatia v. Serbia, the Court emphasized that “Serbia does not contest the systematic and widespread nature of certain attacks. However, it claims that these were intended to force the Croats to leave the regions concerned. In this regard, it cites [cases] in which the ICTY found that the purpose of the attacks on the Croat population was to force it to leave.” In other words, Serbia’s explanation of the evidence was that the attacks were intended to displace the Croat group but not to destroy it. More broadly, Serbia maintained that the evidence “shows a multitude of patterns giving rise to inferences of combat and/or forcible transfer and/or punishment” rather than genocide. The Court found Serbia’s explanation reasonable, drawing heavily on several judgments of the ICTY, and accordingly found that “Croatia has not established that the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group.”

With respect to Serbia’s counter-claims against Croatia, the Court observed that Croatia “maintains that the purpose of all the acts and statements of the Croatian authorities cited by Serbia was strictly confined to regaining possession of areas under Serb control.” The Court found that it “cannot see in the pattern of conduct on the part of the Croatian authorities … a series of acts which could only reasonably be understood as reflecting the intention, on the part of those authorities, physically to destroy, in whole or in part, the group of Serbs living in Croatia.” The Court could be understood as finding that Serbia failed to show that Croatia’s explanation of the evidence was unreasonable, or simply that Serbia’s own explanation of the evidence was unreasonable or unconvincing on its own terms.

The basic point is that, in each case and context, the Court considered whether the applicant’s explanation of the evidence was fully convincing, or whether the respondent’s explanation of the evidence was reasonable. The Court did not develop its own explanations of the evidence, untested by a rigorous adversarial process.

Myanmar’s Changing Position

Returning to the current proceedings, it appears that Myanmar’s legal strategy has fundamentally changed. In 2019, in response to the Gambia’s request for provisional measures, Myanmar’s counsel argued that there was “a reasonable alternative explanation for the intent behind the alleged acts,” namely the intent to deport the Rohingya group from Myanmar. Myanmar relied extensively on proceedings at the International Criminal Court (ICC), where the Prosecutor sought to open an investigation into whether Myanmar’s officials were individually responsible for the crime against humanity of deportation. According to Myanmar, the ICC proceedings showed that genocidal intent was not the only reasonable inference that may be drawn from the acts alleged. While counsel for Myanmar noted for the record that they “intend no admission or acknowledgment,” their legal strategy was to establish that it was reasonable to infer from the acts alleged an intent to deport rather than destroy the Rohingya. Notably, in 2024, the ICC Prosecutor applied for an arrest warrant for Senior General and acting President Min Aung Hlaing for the crimes against humanity of deportation and persecution of the Rohingya. Although ordinary people may find “crimes against humanity, not genocide” a damning admission rather than a clever defense, it largely worked for Serbia and might have worked for Myanmar as well.

But Myanmar’s legal strategy appears to have changed. It seems that Myanmar no longer plans to argue that its intent was to deport rather than destroy (or that it is reasonable to infer as much). Instead, it seems that Myanmar plans to argue that its armed forces were engaged in counterterrorism operations and their acts were intended to suppress or defeat the Arakan Rohingya Salvation Army (ARSA), an armed Rohingya group operating in northern Myanmar. As the Gambia’s counsel, citing Myanmar’s written submissions, told the Court:

Myanmar’s pattern of conduct, in contrast to that of Serbia, does not permit the Court to reasonably infer that its intent was to forcibly displace, or ethnically cleanse, the Rohingya Muslim group. Myanmar itself does not claim that this was its intent, or that such an intent can be reasonably inferred from its conduct. In fact, Myanmar has consistently denied this. …

Myanmar argues that the “clearance operations” were intended neither to forcibly displace, ethnically cleanse or destroy the Rohingyas as a group. Its only defence of this conduct is to claim that its actions were intended to combat terrorism, specifically to counter the activities of the Arakan Rohingya Salvation Army, referred to by the acronym ARSA throughout the pleadings. The “clearance operations” were exercises in counter-terrorism against ARSA, says Myanmar, not efforts to destroy the Rohingya as a group.

Myanmar’s written submissions are not yet publicly available, but it is unlikely that the Gambia is mischaracterizing them. It seems that the Gambia has relied on Myanmar’s representations and now plans to call its sole expert witness to testify that Myanmar’s acts cannot be reasonably explained as a form of counterterrorism. The Gambia has also focused its oral arguments on refuting Myanmar’s “counter-terrorism narrative” (see here, here, and here). The parties will join issue, and the Court will decide whether the Gambia’s explanation of the evidence (genocide) is fully convincing, or whether Myanmar’s explanation of the evidence (counterterrorism) is reasonable.

It is not hard to see why Myanmar might change its line of defense. Any evidence it might present or argument it might offer at the ICJ to avoid a finding of genocide could be used against its leaders at the ICC on charges of crimes against humanity. Indeed, any evidence or admission of an intent to deport would carry weight at the ICJ precisely because it would be a statement against interest (or at least the interest of its leaders). At the same time, Myanmar’s new line of defense seems less likely to succeed. On its face, the idea that Myanmar’s acts with respect to the Rohingya were exclusively intended to suppress the ARSA appears not only unreasonable but preposterous. While there is no point prejudging Myanmar’s presentation a few days before it will be made, the scale and brutality of the violence directed at civilian members of the Rohingya group, including women and children, makes it difficult to see how the Court could possibly find it reasonable to infer from all the evidence taken together that Myanmar’s acts were exclusively intended to suppress an armed group.

Myanmar may try to revive its original strategy by arguing that the Gambia’s explanation of the evidence is less than fully convincing even if Myanmar’s alternative counterterrorism explanation is unreasonable. The idea here would be that an applicant must persuade the Court both that the respondent’s explanation of the evidence is unreasonable, and also that the evidence strongly supports each element of its claims. An applicant should not automatically win, by default, simply because the respondent’s defense is implausible. Whatever the merits of this idea, based on the first days of the proceedings, it seems unlikely that the Gambia’s case contains some fatal flaw, gap, or oversight that would lead the Court to reject its claims in the absence of a reasonable alternative explanation of the evidence put forward by Myanmar.

Whether a State committed genocide against a particular group is an objective matter of fact and law. But proving genocide at the ICJ is largely a matter of the evidence and arguments presented by the parties. Although the Court interprets the law for itself, it necessarily relies on the parties to bring forward evidence and contest its significance. The ultimate question for the Court is whether the Gambia’s explanation of all the evidence is fully convincing, or whether Myanmar’s explanation of all the evidence is reasonable. If Myanmar does not explain, in detail, how an intent to deport rather than destroy the Rohingya can be reasonably inferred from all the evidence before the Court, then the Court is highly unlikely to do Myanmar’s work for it. Nor should it. It is not the Court’s job to develop possible explanations of the evidence put forward by neither party, then evaluate their reasonableness in light of all the evidence before it without the benefit of adversarial testing. The parties present. The Court decides.

The post Proving Genocide: Party Presentation appeared first on Just Security.

Under the Genocide 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.

The intent to destroy, in whole or in part, a protected group is typically referred to as the “specific intent” or dolus specialis, which distinguishes genocide from other international crimes. Specific intent is a mental state which extends beyond the acts committed (here, killing individual group members), often contemplating a further result which the perpetrator aims to bring about but which may or may not occur (here, total or partial group destruction). This article concerns the perpetrator’s mental state toward the acts themselves, specifically with respect to killing individual group members.

“Intent” to Kill

In Bosnia v. Serbia, the ICJ recognized that the acts enumerated in the Genocide Convention “themselves include mental elements.” In particular, “’[k]illing’ must be intentional, as must ‘causing serious bodily or mental harm’… The acts… are by their very nature conscious, intentional or volitional acts.” In Croatia v. Serbia, the ICJ observed that “the words ‘killing’ and ‘meurtre’ appear in the English and French versions respectively of [the Genocide] Convention. For the Court, these words have the same meaning, and refer to the act of intentionally killing members of the group.” To support its point that “killing” and “meurtre” (murder) refer to “intentionally killing,” the ICJ cited a passage of the International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber’s judgment in Prosecutor v. Blagojević and Jokić, which found that “killing” within the definition of genocide has the same meaning as “murder” within the definition of crimes against humanity (para. 642). The same ICTY judgment also observed that “the mens rea of murder as a crime against humanity” involves “dolus directus or dolus eventualis” (fn. 1912, citing Prosecutor v. Stakić). It follows that “intentionally” killing group members within the definition of genocide means killing group members with either dolus directus or dolus eventualis.

For lawyers trained in the common law tradition, the concepts of dolus directus and dolus eventualis require some explanation. Dolus directus includes both the aim or conscious object to cause a result (dolus directus in the first degree) as well as awareness that an action is virtually certain to cause a result (dolus directus in the second degree). These mental states correspond to the common law concepts of direct intent and oblique intent. The precise content of dolus eventualis is somewhat elusive, but the ICTY’s explanation in Stakić is as good as any:

The technical definition of dolus eventualis is the following: if the actor engages in life-endangering behaviour, his killing becomes intentional if he “reconciles himself” or “makes peace” with the likelihood of death. Thus, if the killing is committed with “manifest indifference to the value of human life”, even conduct of minimal risk can qualify as intentional homicide. Large scale killings that would be classified as reckless murder in the United States would meet the continental criteria of dolus eventualis.

While lawyers trained in the common law may resist classifying manifest indifference to human life as a form of “intent,” they should recognize this mental state as similar to the “implied malice” sufficient for murder. To complete the picture, the ICTY also found that murder as a crime against humanity may be committed with “the intent either to kill or to cause serious bodily harm with the reasonable knowledge that it would likely lead to death” (Blagojević and Jokić, para. 556). This includes acts aimed to injure an individual but likely to kill them (similar to one form of “express malice” in some common law jurisdictions) and acts not aimed at any individual but likely to kill someone (including the “[l]arge scale killings” referred to in Stakic).

The ICTY returned to the same point in Prosecutor v. Karadzic: killing group members as an element of genocide involves the same mental element as the war crime of murder and the crime against humanity of murder (para. 542), namely dolus directus or dolus eventualis (see, e.g., para. 448). More recently, the Extraordinary Chambers in the Courts of Cambodia (ECCC) concluded that the elements of killing as an act of genocide are equivalent to the elements of murder as a crime against humanity, which include killing with dolus directus or dolus eventualis (Case 002/02 Judgment, paras. 635-651, 796). This approach both reflects the generally recognized principle that “when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations,” and preserves the defining feature of genocide under international law. Genocide, war crimes, and crimes against humanity involve similar constituent acts, most notably killing vulnerable individuals. The distinctive element of genocide is found elsewhere, in the specific intent to destroy a group, in whole or in part.

Beyond its citation to the ICTY, the ICJ has said little about the exact nature of the intent to kill. In Bosnia v. Serbia and Croatia v. Serbia the ICJ reviewed a range of alleged killings, including by shelling, sniper fire, and mass executions. The ICJ found that killings of group members were committed but did not detail the specific, individual killings it found or identify the exact mental states with which they were committed. It made only one express finding regarding intent to kill. In its counter-claim, Serbia initially alleged that Croatian armed forces “indiscriminately shelled several towns and villages” in an area with a majority Serb population, aimed both at military targets and the civilian population. The ICJ rejected the allegation, based on its reading of the ICTY Appeals Chamber’s judgment in the Gotovina case. The ICJ concluded that “it is unable to find that there was any indiscriminate shelling of the [] towns deliberately intended to cause civilian casualties.” In the alternative, Serbia argued that, even if the artillery attacks on the Krajina towns “were not indiscriminate, and thus lawful under international humanitarian law,” the attacks could still violate the Genocide Convention if committed with the specific intent to destroy a group, in whole or in part. The ICJ rejected this argument as well, stating that

if one takes the view that the attacks were exclusively directed at military targets, and that the civilian casualties were not caused deliberately, one cannot consider those attacks, inasmuch as they caused civilian deaths, as falling within the scope of Article II (a) of the Genocide Convention.

This passage is not especially helpful. The ICJ’s use of terms like “deliberately intended” simply raises the question at issue, namely what kind of “intent” brings killing group members under the Genocide Convention. Substantively, if an attack is “not indiscriminate” and, more broadly, lawful under international humanitarian law, then it will not kill civilians with either dolus directus or dolus eventualis. International humanitarian law prohibits attacks directed against civilians. It also requires taking all feasible precautions to avoid or at least to minimize harm to civilians, and prohibits attacks which may be expected to cause disproportionate harm to civilians. It is hard to imagine an attack that complies with these rules yet either aims to kill civilians or reflects manifest indifference to the value of civilian life. This passage is consistent with the position that “intentionally” killing members of a group includes killing with either dolus directus or dolus eventualis.

The ICTY sought to interpret its Statute to align with the Genocide Convention and with customary international law. In contrast, the International Criminal Court (ICC) is constrained by article 30 of its Statute, which provides that “a person has intent where… [i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.” This provision includes dolus directus, in the first and second degree, but excludes dolus eventualis. The ICC Pre-Trial Chamber has found that, under the ICC Statute, killing group members involves “a general subjective element that must cover any genocidal act … which consists of article 30[‘s] intent and knowledge requirement.” Accordingly, at the ICC, only a defendant who “means” to cause the death of group members or is aware that their action will cause the death of group members in the ordinary course of events may be prosecuted for committing genocide by killing group members.

Fortunately, the ICJ is not bound by the ICC Statute, and may interpret the Genocide Convention on its own terms, taking into account other relevant rules of international law including the customary international law of crimes against humanity and war crimes. The ICJ has generally aligned its interpretation of genocide with the ICTY’s caselaw, attaching “the utmost importance” to the ICTY’s legal findings, and there is no reason for it to depart from its past practice here. The ICJ should affirm that killing group members with either dolus directus or dolus eventualis falls within the scope of the Genocide Convention.

From Intent to Kill to Intent to Destroy

Some readers may wonder whether the nature of intent to kill really matters. In practice, the same evidence that would support an inference of dolus eventualis will often support an inference of dolus directus as well. For example, indiscriminate shelling of a town obviously demonstrates manifest indifference to civilian life, but may also indicate an aim to kill both civilians and fighters alike. The ICC has held that the war crime of attacking civilians “may encompass attacks that are carried out in an indiscriminate manner” as well as “attacks that are launched without taking necessary precautions to spare the civilian population or individual civilians.” The aim to kill civilians often can be inferred in the same way.

More fundamentally, one might think that only killings of group members committed with dolus directus in the first degree (direct intent) can be committed with the specific intent to thereby contribute to the total or partial destruction of a group. Indeed, if one imagines a single individual with both the intent and the capability to destroy a substantial part of a group, that individual would aim to kill group members as a means of destroying the group. Put the other way around, if an individual aims to destroy a group by killing its members, then surely that individual must aim to kill its members.

But that is not how the world works. In the real world, genocide is not committed by a single individual who aims to kill with the further aim to destroy. Genocide is committed by large numbers of people, often organized into military hierarchies, bureaucratic structures, or social networks. Some individuals aim to kill specific, individual group members. Others do what they are told without caring whom they kill. They are told to shell a town, so they shell a town. Their aim in shelling the town may be to kill civilians, to terrorize civilians, or simply to follow orders. The intent and capacity to destroy a group converge at a higher level of authority. It is these higher authorities who intend for the shelling of towns to kill members of a group and contribute to the group’s destruction. At the same time, these higher authorities typically do not intend to kill specific people on an individual basis, or order the killing of specific people. These higher authorities develop or approve general plans, policies, and procedures aimed at the destruction of a group, in whole or in part, including by leading their subordinates to kill categories of people (members of a group) rather than specific, targeted individuals.

International criminal tribunals have deployed different legal categories to capture the complex dynamics of mass atrocities. The ad hoc tribunals developed a form of joint criminal enterprise liability (“JCE I”) according to which physical perpetrators need not possess specific intent where they are used by members of a joint criminal enterprise to commit genocide. As the ECCC explained, following the ICTY,

It is not determinative whether the direct perpetrator shared the mens rea of the JCE member or knew of the existence of the JCE; what matters under JCE I is whether the JCE member used the direct perpetrator to commit the actus reus of the crime forming part of the common purpose.

In contrast, the ICC has developed a form of indirect co-perpetration according to which “the mental state of mid level superiors and low level physical perpetrators is irrelevant.” As the ICC Trial Chamber has explained,

Indirect co-perpetration requires the following objective elements: (i) the existence of an agreement or common plan, between the accused and one of more other persons, to commit the crimes or to engage in conduct which, in the ordinary course of events, would result in the commission of the crimes; and (ii) the control of the members of the common plan over a person or persons who execute the material elements of the crimes by subjugating the will of the direct perpetrators.

On the ICC’s approach, indirect perpetrators individually or jointly use “at least part of the apparatus of power subordinate to him or her [or them], so as to steer it intentionally towards the commission of the crime.”

In its prior cases, the ICJ has not felt the need to adopt a specific legal test linking the intent of higher authorities with the intent (or lack thereof) of direct perpetrators. Perhaps it will feel no need to do so in Gambia v. Myanmar either. The important point here is that the ICJ should not interpret intent to kill in a way that precludes a finding of genocide when (i) higher authorities steer their subordinates toward carrying out attacks that are indiscriminate or otherwise violate international humanitarian law, (ii) the higher authorities aim for such attacks to kill unidentified members of a group and contribute to the group’s total or partial destruction, and (iii) the subordinates kill with manifest indifference to human life.

Conclusion

The ICJ should explicitly interpret “intentionally” killing members of a group to include both dolus directus and dolus eventualis. Direct perpetrators may kill group members with the aim to kill them, with the virtual certainty of killing them, or with manifest indifference to their lives, and may not share the intent to destroy their group. Higher authorities may steer their subordinates toward such killings, with the intent to thereby contribute to the total or partial destruction of their group, without ordering specific attacks or aiming to kill specific group members. These rather technical issues may not prove decisive in Gambia v. Myanmar. But a sound interpretation of the law can only assist the ICJ in reaching a sound judgment based on the evidence before it.

The post Elements of Genocide: Intent to Kill appeared first on Just Security.

The Court applies a high standard of proof in genocide cases. As first explained in Bosnia v. Serbia, “[t]he Court requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in [the Genocide Convention] have been committed, have been clearly established.” Allegations of genocide must be proven by evidence that is “fully conclusive.”

Genocidal intent may be proven by direct evidence of a genocidal plan or by evidence of a pattern of conduct from which the only reasonable inference is that the conduct was committed with genocidal intent. As the Court later explained in Croatia v. Serbia, its “only reasonable inference” test is “in substance identical” with the standard applied by international criminal tribunals, namely that:

it is permissible to infer the existence of genocidal intent based on ‘all of the evidence taken together’, as long as this inference is ‘the only reasonable [inference] available on the evidence’. (Prosecutor v. Tolimir, para. 745)

So understood, the Court’s standards of proof and inference fit together. Evidence of genocidal intent is fully convincing if, and only if, genocidal intent is the only reasonable inference based on “all of the evidence taken together.”

Unfortunately, some States appear uncertain and apprehensive of the Court’s approach to pattern-of-conduct evidence. Some worry that only the similarity of acts will be considered while their scope and severity will be ignored, or that dissimilar acts such as killing and sexual violence will be considered separately, compartmentalizing evidence that should be viewed together. Others fear that pattern-of-conduct evidence excludes other relevant, probative evidence of genocidal intent, such as statements other than official plans. This was never the Court’s intent, and it has not been the Court’s practice. Gambia v. Myanmar presents an opportunity to dispel any lingering misunderstandings.

Briefly, a pattern of similar conduct by different individuals, at different times, in different locations, may provide important evidence that the conduct was directed by higher authorities, or was otherwise coordinated, and reflects a common intention. Pattern-of-conduct evidence is unnecessary when a single incident raises an inference of genocidal intent on its own, or when other evidence exists that multiple incidents were directed or coordinated. Once a common intent is established, other evidence may be introduced to prove genocidal intent, including the scope and severity of the conduct, overlapping patterns of conduct, and statements other than official plans. So long as genocidal intent is the only reasonable inference from all the evidence taken together, the Court should be fully convinced.

The Caselaw

In Bosnia v. Serbia, the Court found that the Army of the Republika Srpska (the VRS) committed genocide in Srebrenica, specifically intending to destroy a substantial part of the Bosnian Muslim group through a combination of killing the military-aged men and expelling the women, the children, and the elderly. The Court did not find an official statement of genocidal intent, nor did it infer genocidal intent from a pattern of conduct. The Court simply evaluated the evidence placed before it and was fully convinced that the acts were committed with genocidal intent.

With respect to atrocities committed outside of Srebrenica, the Court found that genocidal intent had not been “conclusively shown in relation to each specific incident.” Anticipating this finding, Bosnia attempted to link these specific incidents with each other and with Serb leaders. Bosnia proposed that the Court should infer genocidal intent from “the pattern of [potential] acts of genocide committed throughout the territory, against persons identified everywhere and in each case on the basis of their belonging to a specified group.” Bosnia alleged that the genocidal intent of the higher authorities “directing the course of events is clear from the consistency of practices, particularly in the camps, showing that the pattern was of acts committed ‘within an organized institutional framework.’” According to Bosnia, the consistent pattern established that higher authorities must have directed the conduct. Given the nature and scale of the conduct, these Serb leaders must have intended to destroy the group in whole or in part.

The Court noted that Bosnia’s argument “moves from the intent of the individual perpetrators of the alleged acts of genocide complained of to the intent of higher authority.” The Court examined whether genocidal intent could be deduced “from the pattern of actions against the Bosnian Muslims taken as a whole.” It was in this context that the Court famously said that:

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 demonstrated 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.

As the Court says, genocidal intent may be convincingly shown by reference to “particular circumstances,” a broad notion that covers any circumstantial evidence of genocidal intent (as opposed to direct evidence of a genocidal plan). A pattern of conduct is one particular circumstance, among others, that may arise in a specific case and point to genocidal intent. In the case at hand, the particular circumstance invoked by Bosnia was a pattern of similar conduct, and the Court was not fully convinced. But the Court never suggested that a pattern of similar conduct is the only “particular circumstance” that can ever convincingly show genocidal intent across multiple incidents.

In Croatia v. Serbia, the Court “examined and assessed the totality of the evidence advanced by Croatia.” For its part, Croatia “advanced a single claim alleging a pattern of conduct increasing in intensity” over time, involving acts of violence in towns and villages across multiple regions, from which “the only reasonable conclusion to be drawn is an intent on the part of the Serbian authorities to destroy in part the Croat group.” As before, a pattern of conduct was invoked to link together specific incidents and establish that “Serbian authorities” or “Serb leaders” must have directed the conduct which, given its large scale and targeted nature, must have been intended to destroy a substantial part of the group.

The Court loosely defined a pattern of conduct as “a consistent series of acts carried out over a specific period of time.” It found “a pattern of conduct that consisted … in widespread attacks by the JNA [Yugoslav People’s Army] and Serb forces on localities with Croat populations in various regions of Croatia, according to a generally similar modus operandi.” Turning to whether this pattern of conduct revealed genocidal intent, the Court recognized the importance of:

the scale and allegedly systematic nature of the attacks, the fact that those attacks are said to have caused casualties and damage far in excess of what was justified by military necessity, the specific targeting of Croats and the nature, extent and degree of the injuries caused to the Croat population.

The Court focused on “the context in which those acts were committed and the opportunity which the JNA and Serb forces had of destroying the Croat population.” Ultimately, the Court found that all the evidence taken together was consistent with an intent to displace or collectively punish the group without destroying it.

In its counter-claim, Serbia alleged that “the acts and statements of the Croatian authorities taken as a whole, before, during and immediately after Operation Storm manifest a consistent pattern of conduct which can only show that those authorities were animated by a desire to destroy, in whole or in part, the group of Serbs living in Croatia.” Here, too, a consistent pattern of conduct was alleged to show that different incidents were motivated by a common intention of higher authorities. Ultimately, the Court found that the alleged acts which were proven “were not committed on a scale such that they could only point to the existence of a genocidal intent.”

Both cases reflect the same core idea: patterns of similar conduct may indicate that the conduct was directed by higher authorities or otherwise coordinated, and therefore reflects a common intention. Once a common intention is found, an evaluation of genocidal intent may consider other evidence, including the scope and severity of the conduct as well as statements other than official plans. The ultimate question remains whether genocidal intent has been convincingly shown by reference to the “particular circumstances” of the case.

The Court never suggested that direction, coordination, or common intention must be established by a pattern of similar conduct, rather than by witness testimony, authenticated records, or public statements other than official plans. Such evidence may be sufficient with respect to specific incidents, like the Srebrenica massacre, and they may be sufficient with respect to multiple incidents as well. In the case of an advanced military, with hierarchical command and control, direction or coordination reflecting a common intention may be more readily inferred (if not presumed). If the conduct involves large-scale atrocities systematically targeting members of a group, then a strong inference of genocidal intent will naturally arise, and the space for other reasonable inferences will naturally diminish.

Recall the Court’s statement that its standard of inference is “in substance identical” to the standard applied by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tolimir case. As the ICTY explained in the very next sentence, genocidal intent may be inferred from a number of factors, including

the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, or the repetition of destructive and discriminatory acts. The existence of a plan or policy, a perpetrator’s display of his intent through public speeches or meetings with others may also support an inference that the perpetrator had formed the requisite specific intent.

Only one of these illustrative factors involves a pattern of similar conduct, namely “the repetition of destructive and discriminatory acts.” Pattern-of-conduct evidence is an important factor, but it is one factor among others, with a specific but limited function.

As an aside, the Court’s treatment of pattern-of-conduct evidence should not be confused with the substantive requirements of the International Criminal Court (ICC)’s Elements of Crimes. The Elements provide that an individual commits genocide only if they commit a predicate act (such as killing a group member) “in the context of a manifest pattern of similar conduct directed against [a] group” or their conduct “could itself effect” the total or partial destruction of a group. The ICJ did not refer to the Elements in Bosnia v. Serbia. In Croatia v. Serbia, the ICJ mentioned in passing that the Elements are concerned with a related but distinct problem, namely when genocide can be committed by “a single individual or a small number of individuals.” In contrast, the ICJ looks to pattern-of-conduct evidence as one way (though not the only way) to infer that conduct was directed by higher authorities, or otherwise coordinated. Once direction or coordination is proven (and however it is proven), the ICJ looks to the scale of the conduct, potentially including whether it could itself effect the total or partial destruction of a group, as one way (though, again, not the only way) to infer genocidal intent.

The Confusion

In their joint declaration of intervention, Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom observed that

the Court stated that the “only reasonable inference” test should be used with respect to drawing an inference of specific intent from a “pattern” of conduct only. This cannot be the threshold of the test when other methods of inference are also present, such as when examining the scope and severity of a perpetrator’s conduct to evidence specific intent.

These States appear concerned that the Court will ignore the scope and severity of a perpetrator’s conduct when inferring their intent. This concern is misplaced. In its prior cases, the Court identified a pattern of conduct only to infer direction by higher authorities reflecting a common intent. To infer genocidal intent, the Court also examined the scope and severity of the conduct.

Alternatively, these States may be concerned that the Court will treat a pattern of similar conduct as a necessary prerequisite for a finding of genocidal intent, when the scope and severity of the conduct may suffice in a given case. For example, if an advanced military engages in large-scale, systematic violence targeting an ethnic group, then the scope and severity of the conduct alone may raise a strong inference that the violence must have been directed by higher authorities, or otherwise coordinated, and must reflect a common intent to destroy a substantial part of the group. While such large-scale violence may include patterns of similar conduct, it is the scope and severity of the conduct, rather than its similarity as such, that may raise a strong inference of common and genocidal intent. All of this is consistent with the Court’s basic point that genocidal intent must be “convincingly shown by reference to particular circumstances,” of which a pattern of similar conduct is only one.

In its declaration of intervention, the Democratic Republic of Congo (DRC) writes that the Court’s “only reasonable inference” test “applies when the intent is inferred from particular circumstances or a pattern of conduct and does not concern cases where express statements provide evidence of genocidal intent.” In fact, the Court has examined express statements alongside patterns of conduct when applying the “only reasonable inference” test (Croatia v. Serbia, paras. 422, 438). While a pattern of similar conduct may establish the existence of a common intent behind multiple incidents, express statements may establish the (genocidal or non-genocidal) content of that common intent. In principle, express statements could establish genocidal intent when viewed alongside the scope and severity of conduct, whether or not the conduct falls into patterns of similar acts.

Finally, in its declaration of intervention, Ireland interprets patterns of conduct very broadly, to include “a pattern of widespread and systematic violence against the protected group” as well as inciting statements and discriminatory practices. According to Ireland:

Instances of the acts enumerated in Article II (a)-(e) [of the Genocide Convention], together with circumstantial evidence such as statements or incitement by State organs, or persons or entities empowered to exercise governmental authority, may form a pattern of conduct from which the existence of a general policy, plan or campaign may reasonably be inferred.

Regular public statements made on behalf of State organs, or by persons or entities empowered to exercise governmental authority, that denigrate the protected group, as such, or that incite hatred or fear of it should, in Ireland’s view, be considered as forming a pattern of conduct from which reasonable inferences can be drawn for the purposes of the Convention.

Likewise, measures that systematically discriminate against or persecute the group should also form part of a pattern of conduct to be assessed.

As a practical matter, Ireland’s position gets to the right results by the shortest route. The ultimate question before the Court is whether it is fully convinced by all the evidence taken together or, in other words, whether genocidal intent has been convincingly shown by reference to the particular circumstances of the case. By treating actions, statements, and context as part and parcel of a “pattern of conduct,” Ireland’s position arguably just cuts to the chase and minimizes the risk that the Court will be distracted from a full consideration of the evidence. At the same time, Ireland’s position risks losing sight of the original point that a pattern of similar conduct committed across multiple incidents is one basis, though not the only basis, from which to infer direction or coordination reflecting a common intent. The better approach remains to give pattern-of-conduct evidence a specific, significant, but limited role in the evaluation of all the evidence before the Court.

Conclusion

Genocidal intent may be inferred from a pattern of similar conduct, or from other evidence of direction or coordination reflecting a common intent, whose genocidal character may be inferred from the scope and severity of conduct, from statements other than official plans, or from overlapping patterns of conduct (such as killing and sexual violence). The Court’s standard of proof is high but it can be met in a variety of ways. Whatever the Court decides in Gambia v. Myanmar, it should decide based on all the evidence taken together and the particular circumstances of the case before it.

The post Proving Genocide: Patterns of Conduct appeared first on Just Security.

Germany’s preliminary objections are not publicly available but it is easy to guess what they say. During last year’s provisional measures proceedings, Germany did not argue that Israel complied with IHL in Gaza or even that Israel had not committed genocide in Gaza. Quite the contrary. Germany stunned some observers when it told the Court: “It is not a lack of funding that prevents humanitarian aid from reaching the Palestinian population. The real problem is the restrictions on the entry and distribution of humanitarian aid.” The restrictions in question were imposed by Israel.

Instead, Germany invoked the “indispensable third party” doctrine originating from the Court’s Monetary Gold case. According to this doctrine, the Court should not exercise jurisdiction over a claim brought by one State against a second State if resolving that claim would require the Court to determine the legal rights or responsibility of a third State not before the Court. According to Germany, the Court cannot resolve Nicaragua’s claims against Germany without determining the legal responsibility of Israel. Israel is not a party to the case. Hence, Germany argued, Nicaragua’s claims are inadmissible and the case should be dismissed.

Germany’s argument is misguided and the Court should reject it. Nicaragua’s claims against Germany are admissible and the case should proceed. Nicaragua’s claims do not depend on Israel’s legal responsibility, and the Court does not need to determine Israel’s legal responsibility to resolve Nicaragua’s claims. The Court needs to find only that Germany failed to prevent Israeli individuals from committing genocide, is complicit in the commission of genocide by Israeli individuals, or failed to ensure that Israeli individuals respect IHL. While Israel incurs legal responsibility as a State for the acts of its officials, Germany’s legal responsibility does not depend on Israel’s legal responsibility as a State. It follows that Israel is not an “indispensable third party.”

The Court’s case law is clear. The Court will decline to exercise its jurisdiction only if the legal rights or responsibility of a State not before it “would not only be affected by a decision, but would form the very subject-matter of the decision.” More precisely, the Court will decline to exercise its jurisdiction only if the legal responsibility of a State not before it is a logical prerequisite for the legal responsibility of the State before it. In contrast, the Court will exercise its jurisdiction even if the legal responsibility of a State not before it is a logical implication of the legal responsibility of the State before it. Israel’s legal responsibility may be a logical implication of Germany’s legal responsibility, but it is not a logical prerequisite for Germany’s legal responsibility. The “indispensable third party” doctrine does not apply, and Nicaragua’s claims are admissible.

The Duty to Prevent Genocide

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, as its name implies, is primarily concerned with preventing and punishing the crime of genocide. Article 1 confirms that genocide is a crime under international law which States undertake to prevent and to punish. It is axiomatic that only individuals commit crimes, and only individuals can be punished. In contrast, States commit internationally wrongful acts, for which they owe reparation. Article 2 defines genocide. Article 3 provides that genocide and related acts (conspiracy, incitement, attempt, complicity) are punishable. Again, only individuals can be punished. Article 4 refers to “persons committing genocide” or related acts. Article 5 refers to “persons guilty of genocide” or related acts. Article 6 refers to “persons charged with genocide” or related acts. Article 7 concerns extradition (of persons). The implication is clear. The legal duty to prevent genocide is, first and foremost, a legal duty to prevent individuals from committing genocide.

In 2007, the Court held for the first time that the Genocide Convention also imposes a legal duty on States not to commit genocide. In Bosnia and Herzegovina v. Serbia and Montenegro, the Court reasoned as follows:

the expressly stated obligation to prevent the commission of acts of genocide… requires the States parties, inter alia, to employ the means at their disposal … to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III. It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide. (para. 166)

Simply put, a State’s legal duty to prevent individuals from committing genocide implies a State’s legal duty not to commit genocide itself. A State commits genocide when its officials or others under its effective control commit genocide. In that case, the individual commits a crime while the State commits an internationally wrongful act. Crucially, State responsibility does not displace individual responsibility. As the Court observed, “duality of responsibility,” responsibility of States and responsibility of individuals, “continues to be a constant feature of international law.”

The duty to prevent genocide remains, at its core, a duty to prevent individuals from committing genocide. This is plain from the Court’s finding that Serbia failed to prevent members of Bosnian Serb militias—whose acts were not attributable to any State—from committing genocide at Srebrenica. Importantly, the duty to prevent genocide is not limited by territory but instead applies to a State wherever it may be acting or may be able to act in ways appropriate to meeting its obligations (para. 183). Accordingly, a State has a legal duty to use its influence to prevent individuals in another State from committing genocide, including another State’s officials.

In most contexts, it is harmless to speak of a State’s duty to prevent another State from committing genocide. All this means is that one State has a duty to prevent certain individuals from committing genocide, and those individuals are officials of another State or under its effective control. In such cases, preventing those individuals from committing genocide also prevents the other State from committing genocide. However, speaking of a State’s duty to prevent another State from committing genocide should not obscure the fact that what is ultimately at stake is preventing individuals from committing genocide. The duty to prevent genocide works exactly the same way whether the individuals in question are private persons (including members of a non-State armed group) or officials of a State.

Germany has a legal duty to prevent Israeli officials over whom Germany has influence from committing acts of genocide. If Germany fails to use its influence, and those Israeli officials commit genocide, then Germany has breached its legal duty to prevent genocide in the same way that Serbia breached its legal duty to prevent genocide. Of course, Israel will also incur State responsibility for acts of genocide committed by its officials. But the Court does not need to find Israel responsible for those acts in order to find Germany responsible for failing to prevent those acts. The Court needs to find only that Israeli officials committed acts of genocide and that Germany failed to use its influence to stop them.

It follows that Israel is not an indispensable third party with respect to Nicaragua’s claim that Germany breached its legal duty to prevent Israeli officials from committing genocide in Gaza. Germany’s responsibility for failing to prevent genocide does not depend on Israel’s responsibility for committing genocide. It depends on Germany’s alleged failure to use its influence to prevent Israeli officials from committing genocide.

Put another way, Germany’s legal responsibility is not logically dependent on Israel’s legal responsibility. Consider the following propositions:

P1. Germany had a legal duty to use its influence to prevent Israeli officials from committing genocide.
P2. Germany failed to use its influence.
P3. Israeli officials committed genocide.
C1. Therefore, Germany breached its legal duty.

Of course, Israel’s legal responsibility is a logical implication of one ground of Germany’s legal responsibility (P3, above) and an additional true premise (P4, below):

P3. Israeli officials committed genocide.
P4. Israel is legally responsible for the acts of its officials.
C2. Therefore, Israel is legally responsible for genocide.

However, Israel’s legal responsibility (C2) is not a logical prerequisite of Germany’s legal responsibility (C1). It follows that Nicaragua’s claim (P1, P2, P3, C1) is admissible and should be adjudicated on its merits.

Aiding and Assisting Genocide versus Complicity in Genocide

Nicaragua also claims that Germany breached its obligations under the Genocide Convention “by providing aid, including military equipment, to Israel that would be used in the commission of genocide, by Israel.” This claim might be interpreted to allege that Germany aided or assisted the commission of genocide, or it might be interpreted to allege that Germany is complicit in the commission of genocide. These allegations may sound the same, but they may have different implications under the “indispensable third party” doctrine.

Under the law of State responsibility, a State which aids or assists another State in the commission of an internationally wrongful act is responsible for doing so if it knows the circumstances and is bound by the same legal obligation. Under this rule, the Court can find Germany responsible for aiding and assisting the commission of genocide in Gaza only if it first finds that another State (Israel) committed genocide in Gaza. Of course, Israel committed genocide in Gaza if and only if its officials (or other individuals under its effective control) committed genocide in Gaza. However, under this rule, the Court must decide whether Germany aided or assisted Israel’s commission of an internationally wrongful act. Germany’s State responsibility will depend on Israel’s State responsibility. Under the indispensable third party rule, the Court would at least have to postpone hearing this claim against Germany until it decides South Africa’s case against Israel.

It is plausible that customary international law has developed a broader rule precluding a State from aiding or assisting any subject of international law—another State, an international organization, a non-State armed group, or an individual—in the violation of international law (see here). On this view, if Germany aids or assists Israeli officials in the commission of genocide, then Germany’s responsibility would not depend on Israel’s responsibility and the “indispensable third party” doctrine would not apply. This is an attractive view, but there is a more straightforward way to interpret Nicaragua’s claim.

In its application instituting proceedings, Nicaragua referred to Germany’s obligations “to not aid and assist or be complicit in genocide.” Under the Genocide Convention, complicity in genocide is a “punishable” act committed by “persons” for which persons may be “charged” and found “guilty.” As the Court has observed, complicity “includes the provision of means to enable or facilitate the commission of the crime” and involves “a person providing aid or assistance to the direct perpetrators of the crime.” One person may be complicit in the commission of genocide by another person whether they are both State officials, both private individuals, or a mix of the two.

To say that a State is complicit in genocide is just to say that a State’s official, or a person under the State’s effective control, is complicit in the commission of genocide by another person who is neither the State’s official nor under the State’s effective control (see para. 179). It follows that Germany is complicit in genocide if German officials are complicit in the commission of genocide by individuals, namely by Israeli officials. Of course, if Israeli officials committed genocide, then Israel will incur State responsibility for the commission of genocide. But the Court does not need to find Israel responsible for genocide in order to find Germany complicit in genocide. The Court needs to find only that German officials were complicit in the commission of genocide by Israeli officials.

It follows that Israel is not an indispensable third party with respect to Nicaragua’s claim that Germany is complicit in the commission of genocide in Gaza. Germany’s responsibility for complicity in genocide does not depend on Israel’s responsibility for genocide. It depends on Germany’s officials providing “means to enable or facilitate” Israeli officials to commit genocide.

Again, Germany’s legal responsibility is not logically dependent on Israel’s legal responsibility. Consider the following propositions:

P1. Israeli officials committed genocide.
P2. German officials are complicit in Israeli officials’ commission of genocide.
P3. Germany is legally responsible for the acts of its officials.
C1. Therefore, Germany is legally responsible for complicity in genocide.

Of course, Israel’s legal responsibility is a logical implication of one ground of Germany’s legal responsibility (P1, above) and an additional true premise (P4, below).

P1. Israeli officials committed genocide.
P4. Israel is legally responsible for the acts of its officials.
C2. Therefore, Israel is legally responsible for genocide.

However, Israel’s legal responsibility (C2) is not a logical prerequisite of Germany’s legal responsibility (C1). It follows that Nicaragua’s claim (P1, P2, P3, C1) is admissible and should be adjudicated on its merits.

The Duty to Ensure Respect for International Humanitarian Law

Under Common Article 1 to the 1949 Geneva Conventions, States have a legal duty to ensure respect for the Conventions in all circumstances. Similar legal duties arise under customary IHL. States have both a negative obligation to not contribute to violations by others, and a positive obligation to do everything reasonably in their power to prevent violations by others (see here). At a minimum, States agreed that they must ensure respect for the Conventions by the whole population over which they exercise authority, including by private persons whose actions are not attributable to their State. In Nicaragua v. United States (1986), the Court found that Common Article 1 requires States to ensure respect for the Conventions by persons or groups involved in an armed conflict not of an international character on the territory of another State. Since then, the Court has repeatedly found that Common Article 1 requires States to ensure respect for the Conventions by other States (see here, here, and here).

The principle is clear. States have a legal duty to ensure that individuals respect the Conventions. Those individuals may be private persons, members of non-State armed groups, or officials of another State. The duty remains the same. Accordingly, Germany fails to ensure respect for the Geneva Conventions in Gaza if it contributes to violations by Israeli officials or fails to use its influence to prevent violations by Israeli officials. Of course, Israel is responsible for the acts of its officials, including for their failure to respect the Conventions. But the Court does not need to find that Israel failed to respect the Conventions. The Court only needs to find that Germany failed to ensure that Israeli officials respect the Conventions.

It is true that the Geneva Conventions impose legal obligations directly onto States as such (in contrast to the Genocide Convention, as explained above). At the same time, grave breaches of the Geneva Conventions are committed by persons, including by individual combatants and noncombatants, who must be brought to trial and face penal sanctions. Similarly, war crimes under customary international law are committed by individuals and incur individual criminal responsibility. The Geneva Conventions recognize that persons commit breaches of the laws and customs of war, and certain IHL rules expressly impose legal obligations directly on individuals. At a minimum, a State fails to ensure respect for the Geneva Conventions and customary IHL when it fails to use its influence to prevent individuals, including officials of other States, from committing grave breaches or war crimes under customary IHL, or from violating other IHL obligations addressed to them as individuals.

For its part, Nicaragua alleges that Germany failed to ensure respect for the Geneva Conventions with respect to grave breaches and “other war crimes.” In other words, Germany failed to use its influence to prevent Israeli officials from committing grave breaches and war crimes under customary IHL. Of course, Israel incurs State responsibility for acts of its officials that contravene both Israel’s legal obligations as a State and its officials’ legal obligations as individuals. But Germany’s failure to ensure that Israeli officials respect IHL does not depend on Israel’s responsibility as a State or the lawfulness of Israel’s actions as a State.

As before, Germany’s legal responsibility is not logically dependent on Israel’s legal responsibility. Consider the following propositions:

P1. Germany has a legal duty to ensure that Israeli officials respect IHL.
P2. Germany failed to use its influence.
P3. Israeli officials failed to respect IHL.
C1. Therefore, Germany breached its legal duty.

Of course, Israel’s legal responsibility is a logical implication of one ground of Germany’s legal responsibility (P3, above) and an additional true premise (P4, below).

P3. Israeli officials failed to respect IHL.
P4. Israel is legally responsible for the acts of its officials.
C2. Therefore, Israel is legally responsible for failing to respect IHL.

However, Israel’s legal responsibility (C2) is not a logical prerequisite of Germany’s legal responsibility (C1). It follows that Nicaragua’s claim (P1, P2, P3, C1) is admissible and should be adjudicated on its merits.

Conclusion

Israel is not an “indispensable third party” to the case brought by Nicaragua against Germany. Nicaragua’s central claims against Germany—failure to prevent genocide, complicity in genocide, and failure to ensure respect for IHL—do not require the Court to determine whether Israel has committed genocide or violated IHL. Instead, these claims require the Court to determine whether Israeli officials have committed genocide or violated IHL. While the acts of Israeli officials are imputable to Israel, the Court need not impute these acts to Israel in order to resolve Nicaragua’s claims. Israel’s legal responsibility is not a logical prerequisite of Germany’s legal responsibility, and Israel’s legal responsibility does not form the “very subject matter” of the case against Germany. The case should proceed, and the Court should decide whether or not Germany breached its legal obligations to prevent genocide and ensure respect for IHL in Gaza.

The post Nicaragua v. Germany: Why Israel is Not an Indispensable Third Party appeared first on Just Security.

Israel’s use of force against Iran was and remains plainly unlawful and a manifest violation of the United Nations Charter. The Charter prohibits the use of force except with the authorization of the UN Security Council or in the exercise of the right of self-defense “if an armed attack occurs.” No armed attack by Iran against Israel was occurring on June 12, or was about to occur, or was bound to occur unless prevented by the immediate use of force. There was no ongoing armed attack, incipient armed attack, imminent armed attack, or impending armed attack. The law is more than well-settled. When Israel attacked Iraq’s nuclear facility in 1981, the United Nations Security Council unanimously adopted a resolution that “[s]trongly condemn[ed] the military attack by Israel in clear violation of the Charter of the United Nations” and “[c]all[ed] upon Israel to refrain in the future from any such acts.”

The UN Security Council did not authorize Israel’s use of force against Iran. At an emergency meeting, several Council members declared it illegal. Other members called for de-escalation and a return to diplomacy, logically implying that Israel’s use of force is not necessary to prevent an armed attack by Iran. As the International Atomic Energy Agency found, Iran’s failures to co-operate fully with the Agency “gives rise to questions that are within the competence of the United Nations Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security.” Iran’s failures do not legally justify the unilateral use of armed force. The patent illegality of Israel’s use of force was promptly but patiently explained in an earlier essay by Marko Milanovic.

On June 17, Israel sent a letter to the United Nations Security Council informing the Council of its ongoing military operation. The letter does not expressly invoke Israel’s right of self-defense under international law or mention article 51 of the UN Charter (which recognizes that right). Nevertheless, the letter says various things that sound like international law. Israel claims to be “acting to defend its security and very existence” against “Iran’s ongoing aggression.” It refers to an “existential and imminent threat from Iran’s nuclear weapon and ballistic missile program” as well as the “imminent threat” of “Iranian missile and proxy attacks.” It describes its military operation as “a last resort” taken in “the last window of opportunity to prevent Iran from acquiring nuclear weapons … after diplomacy proved ineffective.” It also says that Iran is “substantially involved” in “persistent and unlawful attacks” by Hezbollah, the Houthis, Hamas, and “others.”

While Israel’s letter sounds like international law, it is not international law. Is Israel saying that an armed attack by Iran was imminent? There was no such imminent armed attack, let alone an attack using nuclear weapons that Iran does not possess and has not decided to pursue (according to U.S. intelligence). Is Israel saying that an armed attack by armed groups that Iran supports was imminent? Israel’s use of force was not directed at these armed groups or at cutting off Iran’s support for them as self-defense rules of proportionality and necessity would require.

Israel offers no evidence of an imminent armed attack. It cites a statement by Iran’s Supreme Leader Ayatollah Ali Khamenei that Israel is “a cancerous tumor that must be eradicated and it will be.” Set aside the conspicuous use of the passive voice and the omission of any reference to nuclear weapons or military action. If vile statements could justify the use of force then humanity would never have survived the Cold War. (Those judging Khamenei by his words should note that he has consistently said, over many years, that Iran does not want nuclear weapons and considers their use contrary to Islam). Israel recalls Iran’s direct attacks on Israel in April and October 2024. Israel neglects to mention that these were discrete (unlawful) armed reprisals responding to specific Israeli operations, not indications of future attacks. Finally, Israel refers to attacks on Israel by various armed groups which Iran supports. Set aside whether these amount to armed attacks by Iran or armed attacks attributable to Iran under the law of State responsibility. Israel’s use of force is not directed against these groups or against Iran’s lines of support for them. Missiles launched by the Houthi from Yemen cannot legally justify bombing nuclear energy facilities in Iran.

In an earlier essay, one legal scholar opined that it was “not unreasonable” for Israel to conclude that Iran was “irrevocably committed” to building a nuclear weapon and using it in an armed attack against Israel, and that such an irrevocable commitment might justify the use of force despite the absence of a “temporally” imminent attack in the near future. This conclusion is, in fact, unreasonable. There is no substantial evidence to support it. It defies common sense. Let us speak plainly. The single most important fact about Israel and Iran is that Israel has dozens of nuclear weapons and Iran has none. Iran does not intend to attack Israel with nuclear weapons (which it does not have and, according to the U.S. intelligence community, has not decided to build). Israel would retaliate in kind and Iran would be incinerated, its people killed, its heritage erased, and its form of government wiped from the Earth. Every credible expert on Iran’s national security strategy agrees that its overriding aim is the survival of the regime and the nation. Any notion that Iran intends to trigger mutually assured destruction is delusional and cannot provide a rational basis for the use of force under international law.

Armed Attack and Armed Conflict

On June 18, Israel’s Deputy Attorney General wrote that Israel’s military offensive “was launched as part of the ongoing armed conflict between [Iran] and Israel, in light of the existential and imminent threat from Iran’s nuclear weapon and ballistic missile programs.” He went on to write:

Iran has engaged in an armed conflict with Israel for years, directly as well as indirectly, through various proxies in the middle east. One recent peak of this ongoing armed conflict was marked by Iran’s missiles and UAV attacks on Israel during April and October of 2024, historically unprecedented in their scope. Accordingly, Israel’s actions should be assessed in light of the law of armed conflict.

Two legal scholars appear to make similar claims in an earlier essay (though their intended meaning is not always clear). They concede that if Israel’s military operation “involves a use of force in anticipation of a non-imminent future threat—nuclear or conventional— there is good reason to deem it unlawful.” However, they appear to argue, at least in part, that Israel’s military operation was not a resort to force but an escalation of an ongoing “armed conflict” within which preemptive action is legally permissible.

Such claims make no sense. They conflate two bodies of international law. Under international law, an “armed conflict” triggers the application of the law of armed conflict (also known as international humanitarian law or IHL) to both sides of the conflict. But an “armed conflict” does not authorize the use of force by either side of the conflict, let alone by both sides. Logically, if the existence of an ongoing armed conflict provided an independent legal basis for the use of force, then it would follow that Iran was legally permitted to attack Israel before June 12. It was not. Israel was not permitted to attack Iran either.

Only an “armed attack” within the meaning of the UN Charter can authorize one State to use force against another in self-defense. While the terms “armed conflict” and “armed attack” sound similar, they mean different things and serve different purposes. The term “armed conflict” may be interpreted broadly—including to apply during long lulls in active hostilities—since its legal effect is to protect persons and constrain military operations. To illustrate with a different example, the detention of a single soldier may suffice to trigger an “international armed conflict” and with it the protections afforded by the Geneva Conventions, but would not amount to an “armed attack” triggering the right of self-defense. In contrast, the term “armed attack” must be interpreted narrowly to ensure that force is not authorized when there is no ongoing or imminent attack that it is necessary to halt or repel by force. Self-defense is a limited exception to the general rule prohibiting force, and “armed attack” must be narrowly construed lest the exception swallow the rule.

The fundamental point is that even if there were an ongoing armed conflict between Israel and Iran (alone or along with the armed groups it supports), this would not show that there was an ongoing or imminent armed attack necessitating the use of force against Iran. There was none. While “Israel’s actions should be assessed in light of the law of armed conflict” they must also be assessed in light of the UN Charter, which they manifestly violate.

According to the ICRC, an international armed conflict may persist through long lulls in hostilities until the “general close of military operations” clearly indicating the “final end of all fighting between all those concerned.” Even “redeploying troops along the border to build up military capacity or mobilizing or deploying troops for defensive or offensive purposes” may extend an armed conflict for months or even years despite no exchanges of fire. Does this mean that one or both States may resume the use of force against the other anytime they wish? Of course not. Frozen conflicts should stay frozen. Ceasefires should lead to lasting peace. Lulls in fighting should be opportunities to settle disputes by peaceful means or invite the UN Security Council to determine the existence of (non-imminent) threats to the peace and take measures to maintain international peace and security. The persistence of an armed conflict extends the protections of IHL. It does not indefinitely extend the permission to use force in self-defense.

Nothing changes if Israel is a party to an ongoing armed conflict with Iran and various armed groups it supports, notably Hamas, Hezbollah, the Houthis. For such a single “internationalized” armed conflict to exist, Iran would have to exercise either “overall control” or “effective control” over these armed groups that goes beyond financing and equipping them (for more on this doctrinal debate see here). This seems doubtful, but it is also beside the point. All that would follow from the existence of such an internationalized armed conflict is that the law of international armed conflict would apply to future hostilities between Israel and these armed groups. Nothing would follow about whether Israel may use force in self-defense in Iran that does not aim to halt, repel, or preempt an imminent armed attack.

Finally, Israel’s letter claims that Iran “has been, and continues to be, substantially involved in their proxies’ persistent and unlawful attacks against Israel.” Under international law, a State’s “substantial involvement” in sufficiently grave acts of armed force by armed groups may constitute an act of aggression and an armed attack by that State. The International Court of Justice has held that “substantial involvement” requires more than “assistance … in the form of the provision of weapons or logistical or other support” but the exact threshold is unclear. It is also irrelevant to the question at hand. Israel’s use of force was not directed at these armed groups or at Iran’s lines of support for them, so it would fall outside the legal limits of necessity and proportionality internal to the right of self-defense. Any attempt to circumvent the limits of the right of self-defense by conflating it with the law of armed conflict must be rejected. These distinct bodies of law perform different functions, and this attempt at conflation would undermine both.

Conclusion

Israel’s use of force against Iran was and remains a manifest violation of the UN Charter. It was neither authorized by the UN Security Council nor a response to an actual or imminent armed attack by Iran. It is that simple.

At the time of this writing, the President of the United States is reportedly considering joining Israel’s military offensive against Iran. Doing so would involve the United States in an unlawful act of aggression. It would not be the first time.

Editor’s note: For a different perspective, see Amichai Cohen and Yuval Shany, A New War or a New Stage in Ongoing War – Observations on June 13 Israeli Attack against Iran (June 15, 2025)

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The Bundestag’s disclosure (in full here) raises serious questions about the story Germany told the International Court of Justice in April 2024 in the pending case concerning Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany). As explained further below, Germany told the Court that it sharply reduced its arms exports to Israel and that its exports involved few “war weapons” that might be used in Gaza. It appears that the former is no longer true and the latter is an open question.

Germany’s Story

Nicaragua alleges that Germany breached its obligations under the Genocide Convention by failing to prevent genocide against Palestinians in Gaza and breached its obligations under the Fourth Geneva Convention and customary international humanitarian law (IHL) to ensure respect for their rules in Gaza. Nicaragua requested the Court to indicate provisional measures (interim orders akin to preliminary injunctions) including by directing Germany to immediately suspend arms exports to Israel. The Court relied on Germany’s story in its decision not to indicate the provisional measures requested.

Germany did not say that Israel was not committing genocide or violating IHL in Gaza. On the contrary, Germany told the Court that “[i]t is not a lack of funding that prevents humanitarian aid from reaching the Palestinian population. The real problem is the restrictions on the entry and distribution of humanitarian aid.” The restrictions in question are enforced by Israel, and Germany said it opposed them.

Instead, Germany told the Court that it had ceased major arms exports to Israel while urging Israel to comply with IHL through public and private diplomacy. As summarized by Judge Iwasawa (now the Court’s President) in his separate opinion, Germany told the Court that:

the total volume of licences granted for the export of military equipment to Israel has decreased significantly since November 2023. While the volume amounted to €203.01 million in October 2023 (of which €198.68 million were granted after 7 October 2023), it decreased to €23.59 million in November 2023, €19 million in December 2023, €8.42 million in January 2024, €0.59 million in February 2024, and €1.06 million in March 2024. Germany adds that over 25 per cent of military equipment is destined for eventual reimportation and use by the German armed forces. Furthermore, it maintains that 98 per cent of the licences granted since 7 October 2023 did not concern “war weapons” but “other military equipment”

In short, Germany told the Court that between October 7, 2023, and March 2024 it granted export licenses for military equipment worth €251.34 million. In light of the recent disclosure, it seems that Germany issued export licenses for military equipment worth at least €233,763,796 after its appearance at the ICJ.*

Things may be worse than they appear. Germany told the Court that 25% of the military equipment it authorized for export prior to its appearance would be reimported and not used in Gaza. The recent disclosure refers to the “final export” of military equipment. It is unclear whether “final export” means that these items will not be reimported; if it does, then Germany has authorized more arms exports for potential use in Gaza after appearing at the ICJ than it did before. To be clear, what is most concerning is not just the total amount of arms exports, or the average amount per month, but also the dramatic increase of arms exports compared with the two months immediately preceding the ICJ hearings: February and March 2024.

In its oral submissions that April, Germany emphasized “how the total value of exports … to Israel since October 2023 is spread out over the past months.” According to Germany,

[a]lmost 80 per cent of the volume of exports was approved before the end of October 2023, in what this Court has referred to as “the immediate context” of Hamas’ horrendous massacres. At that point and in this dramatic situation, Germany decided to prioritize pending licence requests.

Following October, the total volume of exports has dropped sharply… to €24 million, €19 million, €8.5 million and so on.

Germany described as particularly “salient” its claim that “in February and March 2024, the total volume of exports for war weapons and other military equipment approved by Germany was at around half a million and around one million euros respectively.” In short, a “salient aspect[]” of Germany’s story was that its arms exports to Israel had dropped to a very low monthly level. Evidently, that changed after Germany’s appearance at the Court and after the Court issued its decision later that month. Indeed, the starkest comparison is between arms exports in the two months immediately before the hearings and in the months following the Court’s decision.

Germany also emphasized the “important distinction” between what it calls “war weapons” and what it calls “other military equipment.” “War weapons” include “automatic weapons and certain corresponding ammunition and essential components.” In contrast, “other military equipment” includes items like “daylight observation binoculars” “a slip ring for the installation in a radar system.” Germany assured the Court that “if we look at what has actually been licensed for export to Israel under this framework since October 2023, we see no artillery shells, no live munitions.”

In contrast, Germany’s recent disclosure indicates that it authorized the export of “firearms, ammunition, weapon parts, special equipment for the army and navy, electronic equipment, and special armored vehicles.” The disclosure does not provide details about when these items were exported, or in what quantity, whether they were intended for training purposes as opposed to lethal use, or whether they included restrictions on their use in Gaza. One expects the Court will want to know.

To be clear, Germany did not necessarily lie to the Court. We don’t know what German officials knew or intended at the time. Germany also never expressly said that it would not increase arms exports soon after its appearance at the Court. But that was a natural inference to draw, and it appears to be the inference the Court drew.

The Court’s Decision

In its decision on provisional measures, the Court noted that Germany is a party to the Arms Trade Treaty and that it conducts assessments “to ascertain whether there is a clear risk that the particular item subject to licensing would be used in the commission of genocide, crimes against humanity or grave breaches of the four Geneva Conventions.” The Court continued:

The Court in addition notes that, as stated by Germany, there has been a significant decrease since November 2023 in the value of material for which the licences were granted, from approximately €200 million in October 2023 to approximately €24 million in November 2023 to approximately €1 million in March 2024. …. Finally, the Court takes note of Germany’s statement that 98 per cent of the licences granted since 7 October 2023 concerned “other military equipment” and not “war weapons.”

On this basis, the Court concluded that “the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power … to indicate provisional measures” regarding Germany’s arms exports to Israel.

The natural reading of the Court’s decision is that Germany’s sharp reduction of arms exports to Israel by March 2024 and its minimal export of “war weapons” which could potentially be used in Gaza entailed that there was no urgency for the Court to order Germany to suspend all arms exports to Israel. Germany’s legal framework appeared adequate to diligently review the few export license applications still pending. This natural reading is reflected in all four separate opinions in the case, as well as in the lone dissenting opinion.

Judge Cleveland wrote that “the information presented regarding Germany’s military assistance to Israel, including with respect to the value, content and volume of exports and actual military licences issued in recent months … does not presently establish a real and imminent risk of irreparable prejudice to the rights Nicaragua invokes as a result of the actions of Germany.”

Judge (now President) Iwasawa summarized Germany’s story that its arms exports to Israel had “decreased significantly” and involved substantial reimportation and negligible export of “war weapons” (see full quote above). He concluded that

Germany’s framework governing exports of military equipment appears robust, and Nicaragua has not shown that Germany’s conduct will give rise to any real and imminent risk of irreparable prejudice before the Court gives its final decision.

Given Judge Iwasawa’s detailed summary of Germany’s story, “Germany’s conduct” naturally refers to Germany’s conduct as of March 2024, involving minimal exports of “other military equipment.”

Vice-President Sebutinde observed that

Germany argues that there is no imminent risk of harm to Palestinians in Gaza associated with Germany’s provision of assistance to Israel. In this regard, Germany notes that its existing legal procedures for exporting arms remove any imminent risk that Germany would assist Israel in violating international. Furthermore, Germany highlights the significant drop in military assistance to Israel since 7 October 2023.

Vice-President Sebutinde later reiterates that “Germany highlights the significant drop in military assistance to Israel since 7 October 2023.”

Judge Tladi poignantly asked

why, given the gravity of the situation and the potential for a breach as alleged by Nicaragua, would the Court determine the circumstances as they now present themselves do not warrant the indication of provisional measures? The simple answer is that, in its oral submissions, Germany acknowledged the gravity of the situation and indicated that it, being aware of the gravity of the situation, had significantly reduced its provision of military assistance to Israel. According to Germany, since the outbreak of the military offensive complained of in October 2023, “no artillery shells [and] no munitions” have been licensed for export to Israel and “nearly all exports [to Israel] involve what is known as ‘other military equipment’, typically of a subordinate or defensive nature”.

Judge Tladi later wrote that, “[f]or the Court, these circumstances, i.e. the reduction in the rate of export licence approval, the domestic German legislative framework and the assurance of due diligence, are relevant circumstances to be considered in determining whether it is necessary to indicate provisional measures.”

Finally, it is worth noting that, in his dissenting opinion, Judge ad hoc Al-Khasawneh (a former ICJ judge) wrote that

Learned counsel for Germany put much stock in the fact that there has been a significant decrease in German shipments to Israel. Notably, however, there has been no indication, let alone a guarantee, from Germany that this will not be reversed. And yet, it seems to have been the only ground that could have possibly persuaded the Court not to indicate measures at this time directed against Germany.

In short, the Court’s decision not to order Germany to suspend arms exports to Israel appears to have been based on Germany’s sharp reduction of arms exports to Israel and the natural inference that they would not substantially increase after the Court’s decision.

It seems that Germany did not get the message. According to the Bundestag,

The International Court of Justice (ICJ) has expressly recognized the German government’s practice of careful case-by-case examination in the interim relief proceedings against Nicaragua and refrained from ordering further measures.

As we have seen, this is only part of the truth. The larger part of the truth is that the Court considered that the German government’s review process appeared adequate given its significant decrease in arms exports as of March 2024 and its supposed exclusion of “war weapons.”

Implications

What follows? Germany’s disclosure may prompt Nicaragua to return to the Court and request provisional measures again. Alternatively, Germany’s disclosure may feature prominently in Nicaragua’s argument at the merits stage years from now. Either way, the Court will want an explanation. As Judge Tladi wrote in his separate opinion,

in my opinion, any export of military equipment to Israel, in light of the evidence adduced in the current proceedings and the present Order, would render Germany without a defence against responsibility in the event of a determination that, either a genocide or serious breaches of international humanitarian law were being perpetrated or even that there was a risk of such crimes being committed. By this I mean, given these proceedings and the reminder by the Court to States, in particular Germany, of “their international obligations relating to the export of arms”, under current circumstances, it would hardly be open to Germany in the future to argue that it was not aware of the risks.

Indeed, Germany seems unlikely to persuade the Court that it employed “all means reasonably available” to it “to prevent genocide so far as possible” and to ensure respect for IHL if it indeed exported substantial amounts of “war weapons” to Israel despite the Court’s rather pointed warning that “[a]ll these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel.”

Crucially, these obligations of prevention may be violated even if Germany does not definitively know that the arms it exports to Israel will be unlawfully used in Gaza (which is the focus of Germany’s arms export review process). These obligations of prevention may be violated if Germany “manifestly failed to take all measures to prevent genocide [or IHL violations] which were within its power, and which might have contributed to preventing the genocide [or IHL violations]” either individually or through “the combined efforts of several States” (Bosnia v. Serbia, paras. 430-431). Among the means available to Germany which are “likely to have a deterrent effect” on Israel’s conduct in Gaza, the Court may find that potentially withholding €233,763,796 of arms exports stands out, and that Germany’s decision to instead continue large-scale arms transfers was an obvious violation of its legal obligations.

One last thing. Germany told the Court that its arms export review process involves the Federal Foreign Office and that licenses for “war weapons” must be issued at the ministerial level. Germany’s Foreign Minister from October 2023 until May 2025 was Annalena Baerbock. On the same day that the Bundestag disclosed Germany’s arms exports to Israel, the United Nations General Assembly elected Annalena Baerbock as its next President. If member States had seen the Bundestag’s disclosure in time, perhaps they would have asked more questions before casting their vote.

The post The Fall and Rise of German Arms Exports to Israel: Questions for the International Court of Justice appeared first on Just Security.

Israel’s military offensive is illegal, and not just in the obvious sense that it is being conducted using means and methods that violate international humanitarian law (IHL), including denial of humanitarian relief, forcible transfer, and apparently unlawful attacks (see here, here, here, here, here, here, here, here, here, here, and here). This essay is not about Israel’s violations of the jus in bello—the legal rules which govern the conduct of hostilities. It is about Israel’s violations of the jus ad bellum—the legal rules that govern the use of force as a whole.

Israel’s military offensive is intended to exercise permanent control over Gaza, disperse its population, and prevent the Palestinian people from exercising its right to self-determination throughout the Occupied Palestinian Territory. Israel’s military offensive thereby violates the international legal prohibitions of forcible acquisition of territory and forcible deprivation of self-determination. Israel’s military offensive is illegal in its entirety and it must cease immediately.

The Legal Framework

In July 2024, the International Court of Justice (ICJ) issued its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The Opinion clarified several important legal questions.

First, Israel bears legal obligations under the law of occupation commensurate with the degree of its effective control over Gaza, notwithstanding its withdrawal of ground forces in 2005. Israel’s effective control includes its “control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone…. This is even more so since 7 October 2023.”

Second, “an occupation involves, by its very nature, a continued use of force in foreign territory” and is therefore subject to “the prohibition of the acquisition of territory by threat or use of force and the right of peoples to self-determination.” The Court found that Israel’s occupation is intended to exercise permanent control over occupied territory and therefore violates the prohibition of forcible acquisition of territory. The Court also found that Israel’s occupation violates the right of the Palestinian people to self-determination by fragmenting their territory, dispersing their members, appropriating their natural resources, and impeding their economic, social, and cultural development. The Court concluded, by an 11-4 vote, that Israel’s continued presence in the Occupied Palestinian Territory is unlawful and must be brought to an end as rapidly as possible.

Importantly, the Court considered that “the policies and practices contemplated by the request of the General Assembly” for an advisory opinion in December 2022 “do not include conduct by Israel in the Gaza Strip in response to the attack carried out against it by Hamas and other armed groups on 7 October 2023.” This limitation left the Advisory Opinion’s application to Gaza as of July 2024 unclear. Israel’s control over Gaza had intensified, but perhaps its intentions had changed.

Only one judge directly addressed “The Question of Gaza” at length: Judge Sarah Cleveland of the United States. In her Separate Opinion, Judge Cleveland wrote:

As the Court makes clear, it is the violation of the rules regarding the use of force, the jus ad bellum, that makes the presence of an occupying Power unlawful …. Instrumentalizing an occupation to achieve the acquisition of territory, as Israel has done in East Jerusalem and the West Bank, renders such presence unlawful, irrespective of any self-defence justification a State may have.

Judge Cleveland went on to write:

Some information before the Court may suggest that Israel has sought to exercise permanent control over the entire Occupied Palestinian Territory, including the Gaza Strip, in order to facilitate the progressive annexation of parts of the territory and the alteration of its demographic character, and to obstruct the right to a Palestinian State. The Court, however, does not make such a determination. It does not conclude that Israel is trying to permanently control the Occupied Palestinian Territory as a whole, or the Gaza Strip. It simply does not address the question.

Finally, Judge Cleveland wrote:

[T]he Court’s Opinion makes clear that it would violate the jus ad bellum for Israel to use its position as an occupying Power to seek to exercise permanent control over the Occupied Palestinian Territory as a whole, including the Gaza Strip. Such use of force also would further compound the violations of the Palestinian people’s right to self-determination.

In other words, while Judge Cleveland did not think the Court had established that Israel intends to permanently control Gaza, she agreed that such an intent would render Israel’s military presence in Gaza unlawful “irrespective of any self-defence justification” it may have. The reason is simple. The use of force with the intent to permanently control foreign territory violates the prohibition of the forcible acquisition of territory. As an internationally wrongful act, it must cease immediately. While the right of self-defense operates as an exception to the prohibition of the use of force, there is no self-defense exception to the prohibition of forcibly acquiring territory. Importantly, Judge Cleveland clarified that the intent to exercise permanent control over occupied territory is illegal whether or not the occupying power asserts sovereignty over occupied territory or purports to incorporate occupied territory into its own territory, as Israel had in East Jerusalem.

Judge Cleveland observed that “[a]ny foreign occupation, by definition, however lawful, will likely involve the temporary denial of aspects of the right to self-determination.” In her view, Israel’s occupation of East Jerusalem and the West Bank is made illegal by “the features of Israel’s occupation that are potentially analogous to a situation of foreign domination. These features include a situation of prolonged occupation characterized by annexation through permanent control and the accompanying suppression of self-determination, over a period of decades.” However, Judge Cleveland was not convinced that “a violation of the right to self-determination — in the absence of a violation of the prohibition of acquiring territory by force — renders an occupying Power’s presence unlawful” or that “such a violation can somehow override any legitimate exercise of the right to self-defence that Israel may have with respect to the Gaza Strip.” In other words, Israel’s military presence in Gaza would be lawful were it a temporary and proportionate act of self-defense. But Israel’s military presence in Gaza is unlawful if it is intended to permanently control territory and indefinitely suppress self-determination.

Illegal Aims: Permanent Control, Fragmenting Population, Obstructing Statehood

According to military plans shown to Israeli journalists, Israel’s current military offensive “aims to occupy 75 percent of the Gaza Strip’s territory within two months … clear it of Hamas infrastructure, raze most buildings, and hold it for the foreseeable future. This captured territory will include all of Rafah, Khan Younis, and the towns north of Gaza City.” Prime Minister Netanyahu has consistently said that “with or without a permanent settlement, Israel will maintain full security control over all areas west of the Jordan River. Of course, this includes Judea and Samaria, and the Gaza Strip.” As Netanyahu explains, “[w]e will see to the general security in the Gaza Strip and will allow the realization of the Trump plan for voluntary migration. This is the plan. We are not hiding this and are ready to discuss it at any time.” According to Netanyahu, “[a]t the end of the effort, all areas of the Gaza Strip will be under Israel’s security control—and Hamas will be totally defeated…. Gaza will be completely demilitarized, and we will carry out the Trump plan, which is so correct and so revolutionary, and it says something simple: The residents of Gaza who wish to leave—will be able to leave.”

Similarly, Defense Minister Katz explains that Israel aims to

[c]lear the area of ​​terrorist infrastructure above and below ground, and add the area, including command posts, to Israel’s security zones in order to protect the communities. Unlike in the past, the IDF is not vacating areas that have been cleared and seized. The IDF will remain in the security zones as a buffer between the enemy and the communities in any temporary or permanent situation in Gaza — as in Lebanon and Syria.

To date, hundreds of thousands of residents have been evacuated and tens of percent of the area has been added to the security zones.

At the same time, the plan for voluntary relocation for Gaza residents is being promoted.

It is clear that Israel intends to control Gaza permanently. It may or may not deploy ground troops over every inch of land. It may or may not assert sovereignty over Gaza, or build settlements, or otherwise incorporate it into Israel. But it clearly intends to exercise permanent control over occupied territory through a permanent military presence. Importantly, Israel’s stated intention is to control Gaza even if it achieves its other stated goals of destroying Hamas and recovering hostages, rendering any invocation of self-defense beside the point. This fact has not gone unnoticed. Yesterday, at the United Nations Security Council, the United Kingdom made it clear that “[w]e also reject the Israeli Government’s unacceptable intention to take control of the Gaza Strip. Permanent forced displacement is a breach of international humanitarian law.”

Terms like “voluntary relocation” are euphemisms for forcible displacement. As Netanyahu told lawmakers during closed-door testimony before the Knesset’s Foreign Affairs and Defense Committee, Israel is “destroying more and more houses [in Gaza and Palestinians accordingly] have nowhere to return. … The only obvious result will be Gazans choosing to emigrate outside of the Strip.” As the ICJ explained, “transfer may be ‘forcible’ … not only when it is achieved through the use of physical force, but also when the people concerned have no choice but to leave.” Rendering an area uninhabitable and placing civilians on a subsistence diet are obvious means of forcible displacement. Forcible displacement is a violation of the Fourth Geneva Convention, a war crime, and a crime against humanity.

Forcible displacement is also a violation of the right of self-determination by which, as the ICJ explains, “a people is protected against acts aimed at dispersing the population and undermining its integrity as a people.” Israel’s military campaign is aimed at permanently dispersing the Palestinians of Gaza, separating them from their land, from one another, and from the Palestinians of East Jerusalem and the West Bank. For this reason, the intent to forcibly displace Palestinians from Gaza is both a violation of IHL and a violation of the right to self-determination. Israel’s intent to permanently suppress Palestinian self-determination renders its entire military campaign unlawful.

Conclusion

In October 2023, Israel’s Intelligence Ministry considered three postwar plans for Gaza: administration by the Palestinian Authority (PA), prolonged military occupation administered by a new local authority, and permanent expulsion of the entire civilian population. The Ministry reported that PA administration “is the option with the most risks.” It explained that “[t]he division between the Palestinian population in Judea and Samaria and Gaza is one of the main obstacles today preventing the establishment of a Palestinian state. It is inconceivable that the outcome of [the 10/7/23 Hamas] attack will be an unprecedented victory for the Palestinian national movement and a path to the creation of a Palestinian state.” The Ministry concluded that prolonged military occupation was untenable. The Ministry recommended permanently expelling the entire civilian population.

On March 4, the League of Arab States proposed a framework for ending the war in Gaza that involves the release of all Israeli hostages and the transfer of governance from Hamas to the Palestinian Authority (PA). Hamas had reportedly agreed to cede governance of Gaza to the PA a few weeks earlier, but Israel’s Foreign Ministry quickly rejected the plan, stating that “with President Trump’s idea, there is an opportunity for the Gazans to have free choice based on their free will. This should be encouraged!”

Israel’s rejection of the Arab League plan should surprise no one. The plan envisions PA administration of Gaza and the West Bank as a path toward an effective and unified government of an independent State of Palestine. That is an outcome that the Israeli government seeks to prevent at all costs. The Israeli government opposes Palestinian statehood in principle (see here, here, here, and here) while publicly stating that broader recognition of the State of Palestine would somehow reward Hamas (see here, here, here, and here). This latter claim is absurd—Hamas opposes a permanent two-State solution as opposed to a long-term truce—but also striking in its echo of the Intelligence Ministry report. The Israeli government’s current plan to permanently control territory while permanently removing people is clearly intended, in part, to prevent the consolidation of the State of Palestine under a single government.

Israel’s military campaign seeks to permanently control Palestinian territory, disperse the Palestinian population, and suppress Palestinian self-determination. It seeks to prevent, in the words of the ICJ, “the realization of the right of the Palestinian people to self-determination, including its right to an independent and sovereign State, living side by side in peace with the State of Israel within secure and recognized borders for both States.” These illegal aims infect the military campaign as a whole, rendering it an unlawful act that cannot be justified by invoking the right of self-defense. Israel’s current military offensive in Gaza is illegal in its entirety and it must stop.

The post The Illegality of Israel’s Military Offensive in Gaza appeared first on Just Security.

On Mar. 2, 2025, Israel imposed a near-total humanitarian blockade on the Gaza Strip, preventing food, medicine, and other essential supplies from reaching the civilian population. Israel denied access to UN agencies and bodies, including the World Food Program and World Health Organization, as well as other international organizations, like the International Committee of the Red Cross. By the middle of April, 4,692 children had been diagnosed with acute malnutrition (United Nations Office for the Coordination of Humanitarian Affairs (OCHA) reports here and here). The food and medicine they need sits in trucks a few miles away.

Last week, the International Court of Justice held public hearings in its advisory proceedings. Thirty-nine States, the United Nations, and three other international organizations participated. Over the weekend, a baby girl named Janan starved to death.

The question posed to the Court by the General Assembly is a complex one, implicating “international humanitarian law, international human rights law, privileges and immunities applicable under international law for international organizations and States, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, the advisory opinion of the Court of 9 July 2004, and the advisory opinion of the Court of 19 July 2024.” It extends beyond humanitarian aid to “development assistance in support of the Palestinian people’s right to self-determination.”

It will likely take months for the Court to work through all the legal issues before it and produce a comprehensive advisory opinion. In the meantime, children will waste away, their bodies damaged beyond repair, while the sick and injured will die.

The Court can act now, and it should.

In an earlier essay, Jasmin Johurun Nessa and I argued that the Court should indicate provisional measures in the separate case of South Africa v. Israel, involving alleged violations of the Genocide Convention. The Court can and should do so on its own initiative (proprio motu) without waiting for a request by South Africa. Nothing prevents the Court from relying on the factual information placed before it in last week’s advisory proceedings as well as reports from U.N. agencies and bodies.

Alternatively, the Court should simply deliver two advisory opinions. The first advisory opinion, issued on an expedited basis, would be limited to Israel’s obligations as an occupying power to ensure the food and medical supplies of the population or, if the population is inadequately supplied, to agree to and facilitate relief schemes on their behalf (Geneva Convention IV, arts. 55 & 59). Based on the information before it, the Court should find that the population in Gaza is inadequately supplied, that U.N. agencies and bodies are prepared to adequately supply them, and that Israel must therefore agree to and facilitate U.N. relief operations immediately. Other legal issues would be addressed in a second advisory opinion delivered later.

At the close of the public hearings, three judges posed questions to the participants. All three inquired about the situation since March 2, when the aid blockade began, indicating that they are concerned with the situation that exists today, not the situation that may exist months from now. The questions also indicate a desire to identify Israel’s obligations in specific and concrete terms.

Vice President Julia Sebutinde asked:

“Which third States and other international organizations operate to provide basic services and humanitarian and developmental assistance in the Occupied Palestinian Territory? To what extent have restrictions, if any, been placed upon their operations in the Occupied Palestinian Territory by Israel since 2 March 2025?”

Judge Juan Manuel Gómez Robledo asked:

“Given the restrictions on access to the Gaza Strip, and taking into account the measures adopted by Israel as of 2 March 2025, what is the current state of the humanitarian situation and, more specifically, the extent of famine among the civilian population?”

He then asked:

“Which entities of the United Nations system are still present in the Gaza Strip and capable of delivering humanitarian aid?”

Finally, Judge Sarah Cleveland asked:

“Since 2 March 2025, what is the operational status of both sides of the border crossing between Egypt and the Gaza Strip, and what measures has Egypt taken to facilitate humanitarian assistance in and out of the Gaza Strip?”

These questions suggest that at least some members of the Court may wish to act now. This essay identifies one way the Court could do so.

Nothing prevents the Court from dividing a complex request into two parts and answering the more urgent part first. The Court should do so here. The Court has delivered two advisory opinions in a single proceeding once before, involving the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania. There, the General Assembly expressly called upon the Court to deliver one opinion on two legal questions in a first phase and, contingent on subsequent conduct by the States concerned, deliver a second opinion on two further legal questions. Here, the General Assembly’s request refers to “urgently needed supplies essential to the survival of the Palestinian civilian population.” Its resolution notes “the utmost urgency of upholding [] essential assistance” and expresses the view that “these developments demand consideration by and guidance from the International Court of Justice, on a priority basis and with the utmost urgency.” The General Assembly expressed its “grave concern about the dire humanitarian situation” and demanded that Israel “comply without delay with all of its legal obligations.” It expressed its appreciation to the Secretary-General for his “rapid response and ongoing efforts,” including with regard to “emergency humanitarian needs.” While the General Assembly did not ask the Court to deliver two advisory opinions, doing so would duly respect the General Assembly’s sense of “utmost urgency.”

The Court is faced with many legal questions and must answer them all. But it may answer some before others. Many questions are complex. But others are simple. Children are starving. The civilian population is inadequately supplied. Israel is not ensuring their food and medical supplies. U.N. agencies can do so. So Israel must agree to and facilitate humanitarian relief by U.N. agencies. It is that simple. The Court should say so now.

Over the weekend, reports surfaced that the Israeli government is considering allowing a limited amount of food to enter Gaza “before the end of the month.” These reports should not stay the Court’s hand. Civilians in Gaza are inadequately supplied now, so Israel must agree to and facilitate relief now. Every day that children, pregnant women, the sick, the wounded, and other civilians are deprived of the food and medicine they need is a day that Israel violates its legal obligations. This continuing breach must immediately cease and never repeat.

The reported plan will not adequately supply the civilian population even if it is implemented weeks from now. The plan envisages creating six food distribution sites in South Gaza. Civilians in North and Central Gaza would be left to starve. While the model reportedly “could be expanded to north and central Gaza,” such an expansion may not happen for additional weeks, or months, or at all. Each hub would serve only 5,000 to 6,000 households, leaving the vast majority of civilians with nothing. Each household would receive a 44-pound parcel of food and hygiene items every week or two. Even able-bodied adults would struggle to deliver such parcels back to their households without cars or fuel. In many households, all adults are dead or injured, sick or malnourished, elderly or disabled. They and their children will die. Each parcel is designed to contain “the exact amount needed and not an ounce more,” according to a former Israeli military official involved in earlier planning. Plainly, a standard-size parcel cannot provide the “exact amount” needed by households of different sizes and with different needs. Children require diverse diets to grow, while burn victims require more food to heal. This is why international criminal tribunals consistently hold that placing civilians on a subsistence diet is not a humanitarian gesture but an international crime.

The reported plan would not come close to satisfying Israel’s obligations as an occupying power. It makes a mockery of international humanitarian law. The U.N. Secretary General, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, and the Humanitarian Country Team have denounced it and refuse to participate in “any arrangement that does not fully respect the humanitarian principles.”

If this reported plan reflects the most that Israel is prepared to do on its own, then the Court must take the matter out of Israel’s hands and place it into the hands of the United Nations.

The General Assembly posed a complex question to the Court. The Court should answer part of that question now, and answer the rest later, not because any part of the question is unimportant, but because one part of the question is of “the utmost urgency.” The civilian population of Gaza is inadequately supplied. Israel must agree to and facilitate relief by the U.N. agencies and international organizations positioned to provide it. The whole world knows this. The Court knows this. The Court should say so now.

The post “With the Utmost Urgency” – The Crisis in Gaza and Advisory Opinion(s) of the International Court of Justice appeared first on Just Security.

Under article 76(1) of the ICJ’s Rules of Court:

At the request of a party or proprio motu, the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification.

Several significant changes in the situation in Gaza since the Court’s prior decisions concerning provisional measures justify their modification.

First, Israel’s closure of all border crossing points on Mar. 2, 2025 is denying almost all humanitarian relief from entering Gaza. This intentional deprivation of food, medical supplies, shelter, and other essential goods is even more extreme than that underway at the time of the Court’s prior decisions. Israel’s cutoff of electricity on Mar. 9 has also impaired water desalination and placed the overall supply of water at risk. This near-total denial of humanitarian relief creates a further risk of deliberately inflicting conditions of life calculated to destroy a substantial part of the Palestinian group.

Second, Israel’s current military campaign is killing civilians at a much higher rate than the military campaign underway at the time of the Court’s prior decisions. The Israel Defense Forces (IDF) have reportedly killed over 500 people in three days, including at least 312 women and children. Credible reports indicate that some of these attacks may have exclusively killed civilians. The continuation of this military campaign risks directly killing a substantial part of the Palestinian group.

Finally, Israel’s Prime Minister and Defense Minister have stated their intention to remove the civilian population from Gaza, and Israeli media reports indicate that the current military campaign is designed to facilitate that aim. The forcible displacement of two million civilians plainly risks the destruction of a substantial part of the Palestinian group as such, either as a means of driving survivors from their land or as a consequence if displacement is to areas unable to provide survivors with the basic means of survival.

The consequences of these three changes compound one another. The denial of medical supplies increases the lethality of the military campaign. The military campaign impedes the provision of medical care. The forcible displacement of civilians would likely involve extreme violence while separating civilians from the few medical facilities still capable of treating them.

While the Court need not definitively find that Israel is acting with genocidal intent before indicating provisional measures and prior to a final judgment on the merits of the case, official statements of intent by high-ranking officials are relevant to the Court’s finding of further risk of irreparable prejudice. On Mar. 19, 2025, Israeli Defense Minister Israel Katz issued the following statement on social media with English and Arabic subtitles:

“Residents of Gaza, this is your final warning. The first Sinwar destroyed Gaza, and the second Sinwar will bring upon it total ruin. The Israeli Air Force’s attack against Hamas terrorists was only the first step. What follows will be far harsher, and you will bear the full cost.

Evacuation of the population from combat zones will soon resume. If all Israeli hostages are not released and Hamas is not kicked out of Gaza, Israel will act with force you have not known before.

Take the advice of the U.S. President: return the hostages and kick out Hamas, and new options will open up for you—including relocation to other parts of the world for those who choose. The alternative is destruction and total devastation.”

Katz’s statement indicates that Israel’s military campaign is intended to kill civilians, cause serious harm to civilians, and inflict destructive conditions on civilians until the civilian population somehow removes Hamas from Gaza and rescues Israeli hostages—two results the IDF has been unable to achieve in 16 months of brutal war. Whether civilians are directly targeted or killed in disproportionate attacks on military objectives, their deaths as part of the promised “destruction and total devastation” are intended as a means of pressuring surviving civilians to remove Hamas and rescue hostages. Such a military campaign clearly risks destroying a substantial part of the Palestinian group. Katz’s statement also confirms that Israel’s leaders intend to remove civilians from Gaza, though on Katz’s account removal is tantamount to a reward for removing Hamas and rescuing hostages. The far more likely outcome is “total devastation.”

The conditions for the modification of the Court’s provisional measures are clearly met. The changes in the situation in Gaza since the Court’s prior decisions risk consequences that current measures do not fully address, entailing a further risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention. In view of the fundamental values sought to be protected by the Genocide Convention, the extreme vulnerability of the civilian population in Gaza, and the intensity of Israel’s military campaign, the Court is faced with a situation of extreme urgency that would justify immediate action without holding oral hearings.

The Court should indicate provisional measures along the following lines:

The State of Israel shall immediately halt its current military offensive in Gaza, and refrain from any other action which may kill a substantial part of the Palestinian group in Gaza or inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.

The State of Israel shall immediately reopen all available border crossing points and ensure the unhindered provision at scale of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, at a level matching or exceeding that achieved during February 2025.

The State of Israel shall ensure with immediate effect that its military does not deport or forcibly transfer Palestinians from the Gaza Strip, including by physical force, threat of force, coercion, or taking advantage of a coercive environment, or forcibly displace Palestinians within the Gaza Strip in a way that may involve or could result in the destruction of the Palestinian group in Gaza in whole or in part.

The first proposed measure is designed to halt the current offensive but does not preclude proportionate responses to rocket fire or targeted hostage rescue operations. The second proposed measure sets  February 2025 as the minimum standard for humanitarian access because that period demonstrated the level of humanitarian relief that can be provided when Israel lifts restrictions and facilitates humanitarian access. The third proposed measure responds to another major change in the situation that creates further risk and requires the Court’s immediate intervention. The Court should indicate such measures without delay.

Legal Framework and Background

Under the Genocide Convention, genocide includes certain acts committed with intent to destroy a national, ethnical, racial or religious group, in whole or in part, as such. These acts include killing members of the group and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

On Jan. 26, 2024, the Court found that the Palestinians “appear to constitute” a protected group under the Genocide Convention, that “Palestinians in the Gaza Strip form a substantial part of the protected group,” and therefore the right of the Palestinians in Gaza to be protected from acts of genocide is “plausible.” The Court examined the factual circumstances before it, including the nature of Israel’s conduct, statements by Israeli officials, and the consequences for Palestinians in Gaza. The Court found 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,” including “the right of Palestinians in the Gaza Strip to be protected from acts of genocide.” On that basis, the Court indicated a series of provisional measures, including that Israel prevent acts of genocide as well as incitement to commit genocide, and “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”

On Feb. 16, 2024, the Court found that the “perilous situation” in Gaza “demands immediate and effective implementation of the provisional measures indicated” in January but “does not demand the indication of additional provisional measures.”

On Mar. 28, 2024, the Court found that “the spread of famine and starvation” was a change in the situation since its January decision, that this change entailed a further risk of irreparable prejudice that its prior decision did not fully address, and that this change justified the modification of its prior decision. The Court indicated further provisional measures, specifying the forms of humanitarian assistance that Israel must ensure. Notably, the Court invited written observations from Israel but did not hold oral hearings.

On May 24, 2024, the Court found that “the worsening conditions of life faced by civilians in the Rafah Governorate” was a change in the situation since its March decision, that this change entailed a further risk of irreparable prejudice that its prior decisions did not fully address, and that this change justified the modification of its prior decisions. The Court indicated further provisional measures, including that Israel shall “[i]mmediately 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,” and “[m]aintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance.”

The same legal conditions justifying modification are satisfied here. The changes in the situation in Gaza since the Court’s prior decisions risk consequences that current measures do not fully address, entailing a further risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention. These changes in the situation justify the modification of the Court’s prior decisions, either at South Africa’s request or at the Court’s own initiative, as described below.

Indication and Modification Under the Rules of Court

The ICJ’s Rules of Court provide that the Court may indicate, modify, or revoke provisional measures either at the request of a party or on its own initiative (proprio motu). When the Court acts proprio motu, it may take a decision without an oral hearing “in the event of extreme urgency.” Indeed, the Court indicated provisional measures proprio motu without receiving written observations in the LaGrand case discussed below. In contrast, the Court may not modify or revoke provisional measures without receiving written observations (art. 76(3)).

The measures proposed above are best understood as new measures rather than modifications of existing measures. While the second proposed measure resembles prior measures concerning humanitarian assistance, it makes a distinct demand (to reopen all available border crossings) and sets a new standard for compliance (the level of aid delivered in February 2025). As explained below, the conditions for the indication (rather than modification) of provisional measures proprio motu are also met, so the proposed measures may be indicated without receiving written observations.

Article 75(1) of the Rules of Court provides that:

The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties.

This provision has been part of the ICJ’s procedural framework since 1936 and remains “clearly established” within the Rules, affirming the ICJ’s discretionary authority to act in urgent situations to prevent irreparable harm. Importantly, Article 75(1) permits the Court to proceed without holding oral hearings in circumstances of “extreme urgency.” This is supported by precedents from the time of the Permanent Court of International Justice (see here and here).

The ICJ’s framework for provisional measures includes other key provisions. Article 41 of the ICJ Statute empowers the Court to indicate provisional measures when circumstances require action to preserve the respective rights of the parties. This power is exercised only if the Court determines there is urgency, interpreted by the Court as a “real and imminent risk” that irreparable harm will occur to the rights at stake before the Court renders its final decision.

Article 75(1) allows the ICJ to examine proprio motu whether “the circumstances of the case require the indication of provisional measures.” In the LaGrand case, the ICJ clarified that the exercise of its proprio motu powers depends on “the particular circumstances of the case,” which include circumstances that “would cause irreparable harm to the rights claimed” before the Court. Thus, the LaGrand standard builds on the general urgency framework established under Article 41 but, importantly, introduces the concept of “extreme urgency” as a heightened threshold requiring immediate judicial action. This heightened focus makes Article 75(1) distinct because it enables the Court to act without relying on a party’s formal request, responding to circumstances that may preclude timely intervention by the parties themselves.

By contrast, Article 76(1) explicitly ties the Court’s ability to revoke or modify existing measures to the existence of “some change in the situation.” This standard acts as a procedural safeguard, ensuring judicial consistency while allowing responsiveness to evolving conditions. Nonetheless, it is somewhat backward-looking, focusing on whether a material change justifies reconsideration of prior measures, rather than on the forward-looking need, like Article 75(1), to prevent irreparable harm based on extreme urgency.

Conceptually, it would appear that the standards under Articles 75(1) and 76(1) are distinct; Article 76(1) requires a demonstrable change, while Article 75(1) permits the Court to act based on the urgency and gravity of existing circumstances, regardless of whether they represent a departure from prior conditions. However, in practice, these tests may overlap. Situations extreme enough to meet the urgency and gravity threshold required for proprio motu action under Article 75(1) may arise from “some change in the situation” that would also satisfy the Article 76(1) threshold. Conversely, not all changes in the situation under Article 76(1) may meet the “extreme urgency” threshold required for Article 75(1). The LaGrand decision underscores the unique role of Article 75(1) in enabling the ICJ to act proprio motu in cases of extreme urgency, where irreparable harm is imminent and judicial intervention cannot wait. While the urgency requirement is a constant in the ICJ’s provisional measures framework, Article 75(1) reflects the Court’s discretion to respond independently when circumstances demand immediate action to protect the rights at stake.

Article 75(1) of the Rules of Court in Practice

The ICJ has invoked Article 75(1) only once. This was in the LaGrand case (Germany v. United States of America). In that case, the ICJ acted just one day after Germany’s request for provisional measures, indicating measures without holding a hearing or receiving written observations from the respondent State. The urgency of the situation — preventing the execution of Walter LaGrand — required the Court to act swiftly to avoid irreparable harm. Following LaGrand, the decision to invoke Article 75(1) depends on the Court’s assessment “in the light of the particular circumstances.”

South Africa’s Feb. 12, 2024 request for provisional measures to the ICJ explicitly invoked Article 75(1) of the Rules of Court, urging the Court to consider additional provisional measures proprio motu. Israel’s Feb. 15, 2024 response to South Africa’s request reinforced a key procedural point: the ICJ’s ability to act proprio motu under Article 75(1) is not contingent on any party’s formal request. As such, the ICJ’s procedural flexibility under Article 75(1) remains unbound by party submissions, allowing the Court to respond to situations of extreme urgency to safeguard the right to be protected from acts of genocide where they are at serious risk of irreparable harm. Ultimately, the Court did not exercise this authority at that time. Since then, the humanitarian crisis in Gaza has deteriorated to levels unimaginable not only in February but since the ICJ’s last order of provisional measures in May 2024. The circumstances surpass the extreme urgency of LaGrand, involving not just the survival of an individual but the survival of a population.

In each of its prior decisions, the Court found that the civilian population in Gaza was “extremely vulnerable.” The Court also repeatedly found that, in view of “the fundamental values sought to be protected by the Genocide Convention, the plausible rights in question in these proceedings” including the right to be protected from acts of genocide “are of such a nature that prejudice to them is capable of causing irreparable harm.” In light of the intensity of Israel’s current military campaign, the near-total denial of humanitarian access as an official policy, and the stated intention to remove Palestinians from Gaza, the situation is clearly one of extreme urgency that warrants the indication of provisional measures without an oral hearing or written observations.

Conclusion

The ICJ should indicate provisional measures directing Israel to immediately halt its current military campaign, restore the level of humanitarian assistance achieved in February 2025, and refrain from displacing Palestinians from Gaza. The Court has the legal authority to act. It must use its authority now, before it is too late.

We are not naïve. Israel has plainly violated the Court’s prior orders and may violate the proposed measures as well. But Israel’s apparent disregard for the Court’s authority cannot justify any of us failing to discharge our own responsibilities, let alone the responsibilities of the International Court of Justice.

IMAGE: Palestinians flee with their belongings Beit Lahia in the northern Gaza Strip on March 21, 2025. (Photo by Bashar Taleb/AFP via Getty Images)

The post “In the Event of Extreme Urgency”: The International Court of Justice Must Indicate New Provisional Measures to Protect Civilians in Gaza appeared first on Just Security.

On December 5, 2024, Amnesty International released a lengthy and detailed report finding that Israel is committing genocide against Palestinians in Gaza. The report is based on a year of independent investigation and legal analysis. The evidence assembled includes eyewitness testimony, satellite imagery, video footage, audio recordings, and authenticated photographs. The report documents actions by Israeli soldiers as well as statements by Israeli officials. The report describes intentional and indiscriminate attacks against civilians, destruction of objects indispensable to civilian survival, denial and obstruction of humanitarian aid, mass forced displacement, wanton destruction, and torture. At minimum, these acts are serious violations of international humanitarian law. Several underly the arrest warrants issued by the International Criminal Court (ICC) against senior Israeli officials for war crimes – including starvation and attacking civilians – as well as crimes against humanity – including murder, persecution, and other inhumane acts.

Based on Amnesty’s extensive factual findings, the report concludes that Israel’s conduct in Gaza falls within the definition of genocide under the 1949 Genocide Convention. Israel is killing Palestinians, causing serious bodily and mental harm to Palestinians, and deliberately inflicting on the Palestinian national group conditions of life calculated to bring about its physical destruction in whole or in part. The report finds that Israel is committing these acts with the specific intent to destroy the Palestinians of Gaza – a substantial part of the Palestinian national group – as such.

The report explains that Israel is pursuing group destruction alongside its military goals and, in part, as a means to achieve its military goals. Israel’s conduct in Gaza cannot be fully explained as an unfortunate byproduct of a military campaign to destroy Hamas, or as the result of reckless indifference. The report finds that Israel’s conduct in Gaza can only be fully explained as at least partly intended to destroy the Palestinians of Gaza.

This essay examines Amnesty’s interpretation and application of the Genocide Convention as well as relevant decisions of international courts. In my view, Amnesty correctly applies existing law. Amnesty’s legal conclusions can only be fully assessed in light of its extensive factual findings, which readers should carefully examine for themselves. I will limit myself to explaining Amnesty’s core arguments as I understand them.

Amnesty International shared an advance copy of the report with me two days before its public release and invited me to speak on a panel discussing the report in The Hague. This essay expands on my remarks at that panel.

Elements of Genocide

Amnesty’s report is legally conservative. The report applies the legal definition of genocide set out in the 1949 Genocide Convention. The report interprets this legal definition in line with the jurisprudence of the International Court of Justice (ICJ) and the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY). The report accepts the law as it is, though it applies existing law in a nuanced and sophisticated way.

Under the Genocide Convention, genocide involves specific acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. These acts include killing members of the group; causing serious bodily or mental harm to members of the group; and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. States are legally responsible for acts of genocide committed by their officials, armed forces, and others under their control.

The report accepts that genocide is narrowly defined. Under international law, genocide requires more than the mass killing of group members (the crime against humanity of extermination). It requires more than the discriminatory targeting of individuals because of their group membership (the crime against humanity of persecution). Genocide requires the specific intent or purpose to destroy the group, in whole or in part, as such. This specific intent distinguishes genocide from war crimes and crimes against humanity.

But while the definition of genocide is narrow, it is not empty. As the report explains, genocidal intent can and often will coexist with other intentions, especially during armed conflict. A State may intend both to destroy a group and to defeat a military adversary (what the report calls “dual intent”). Or a State may intend to destroy a part of the group as a means of defeating a military adversary, such that group destruction will continue until victory is achieved (what the report calls “instrumental intent”). The intent to destroy a group may also be constrained by the intent to maintain alliances or the intent to avoid sanctions (what one might call “constrained intent”). Yet the intent to destroy may persist and continue to operate within such external constraints.

Amnesty’s legal position is consistent with the terms of the Genocide Convention, which say that an act of genocide must be committed with intent to destroy a group, but which do not say that group destruction must be an act’s sole, only, or exclusive intent. Inserting such a restriction would undermine the Convention’s object and purpose, namely to protect human groups in time of peace and in time of war. The intent to destroy a group will seldom, if ever, exist in isolation from a perpetrator’s political or military aims.

Amnesty’s legal position is also consistent with the case law of the ICTY and the ICJ. Both courts found that the 1995 massacre at Srebrenica was an act of genocide, committed with the intent to destroy a substantial part of the Bosnian Muslim group. The perpetrators had additional intentions, including the intent to eliminate potential military threats, the intent to expel the Bosnian Muslim population, and the intent to control a strategic location. The ICTY “rejected the Defence’s argument that the killing of these men was motivated solely by the desire to eliminate them as a potential military threat” and found that “the extermination of these men was not driven solely by a military rationale.” Instead, the ICTY found that “their extermination was motivated by a genocidal intent” without suggesting that other intentions suddenly disappeared. Indeed, the ICTY found that the killings may have been intended as a means of permanently securing a strategic location. Genocidal intent coexisted with these other intentions, and genocide was committed in parallel with and as a means of pursuing other aims.

The perpetrators of the Srebrenica massacre did not kill most of the Bosnian Muslims of Srebrenica. They murdered more than 7,000 men and teenage boys, while forcing 25,000 women, older men, and young children onto buses for expulsion. As the ICTY recognized, international pressure may prevent the perpetrator of a “genocidal plan from putting it into action in the most direct and efficient way,” and compel it instead to adopt “the method which would allow them to implement the genocidal design while minimizing the risk of retribution.” These external constraints may require “leaving the destruction [of the group] incomplete.” But genocidal intent may continue to operate within those constraints.

In Bosnia v. Serbia, the ICJ affirmed the ICTY’s finding that the Srebrenica massacre was committed with genocidal intent, rejecting Serbia’s argument that “the military action taken by the Bosnian Serbs was in revenge and part of a war for territory,” and responded to “attacks carried out by the Bosnian army from within Srebrenica [which] was never demilitarized.” The Bosnian Serb operation may have begun with an intent to punish, defeat, expel, and control. But at some point an additional intent was formed and fused with the others: the intent to destroy the Bosnian Muslims of Srebrenica.

In Croatia v. Serbia, the ICJ understood the ICTY to have found that the killings of thousands of Croats living in specific regions “were not committed with intent to destroy the Croats, but rather with that of forcing them to leave the regions concerned so that an ethnically homogeneous Serb State could be created.” In other words, the ICJ found that the acts were committed exclusively with the illegal but non-genocidal intent to forcibly displace the Croat group, and not at all with the intent to destroy the group as such. The Court did not change its legal interpretation and did not require that acts must be exclusively intended to destroy a group in order to constitute genocide.

Finally, Amnesty’s understanding of existing law is shared by States. The Democratic Republic of Congo’s recent declaration of intervention in The Gambia v. Myanmar (another case brought before the ICJ under the Genocide Convention) argues that “[t]he Convention does not require that genocidal intent be the sole or even the main intent pursued,” noting that “the perpetrators of genocide may pursue a plurality of objectives and genocidal intent must be neither exclusive nor even primary” (my translation). Similarly, Chile’s declaration of intervention in South Africa v. Israel emphasizes that “it is essential to note that the Genocide Convention does not require that the intent to destroy a group (in whole or in part) be the sole or primary purpose of the perpetrator…. Therefore, evidence of further motives —personal, political, or linked to military advantage— will not preclude a finding of genocide if such special intent is otherwise established.”

Genocide in Gaza

Amnesty’s report argues that Israel’s intent to destroy the Palestinians of Gaza is clearly demonstrated by the relentless repetition of illegal conduct: killing, maiming, starving, and displacing thousands of civilians for over one year, despite repeated warnings of the impact of its actions by humanitarian agencies and despite diplomatic pressure from the United States and other allies. According to the report, the continuation of this conduct permits only one reasonable inference: an intent to bring about the known result. This inference is reinforced by dozens of statements by senior Israeli officials as well as Israeli soldiers, highlighted in Amnesty’s report, indicating an intent to destroy the Palestinians of Gaza.

The report acknowledges that Israel’s intent to destroy the Palestinians of Gaza coexists with its intent to destroy Hamas. In some cases, these intentions run in parallel. For instance, some airstrikes precisely targeted Hamas fighters, while other airstrikes exclusively killed civilians. The report documents 15 strikes which killed 334 civilians, including 141 children, while killing no fighters and destroying no military objectives.

In other cases, these intentions merge. Bombing of homes, hospitals, and schools full of civilians has caused “casualties and damage far in excess of what was justified by military necessity,” which the ICJ considers one of the “most important” factors to establish the existence of a pattern of conduct revealing a genocidal intent in the context of an armed conflict. Israel’s restrictions on humanitarian aid; repeated forced displacement; and destruction of food, water, and medical systems; is inflicting a slow death on the civilian population of Gaza, in part as an end in itself and in part as a means to compel Hamas to surrender.

Israel’s intent to destroy the Palestinians of Gaza is constrained, to some extent, by its intent to maintain U.S. support and to avoid international sanctions. Following the ICJ’s second order of provisional measures on March 28, 2024, as well as global outrage over Israeli airstrikes on a World Central Kitchen aid convoy on April 1, 2024, Israel “finally committed to opening a crossing into the north of Gaza, making the port of Ashdod available to deliveries, and ensuring that existing crossings were open for more hours.” In May 2024, U.S. Secretary of State Antony Blinken certified that Israel was not “currently” prohibiting or restricting U.S. humanitarian assistance and should continue to receive U.S. arms, over the objections of subject matter experts within the U.S. Agency for International Development and the State Department’s Bureau of Population, Refugees and Migration. Israeli restrictions on aid soon snapped back into place. The amount of aid entering Gaza dropped in May and reached its lowest point in October 2024. The report concludes that Israel’s intent to starve civilians was temporarily constrained but never abandoned.

If Israel was merely indifferent to Palestinian suffering, not caring one way or the other, then sustained pressure from key allies; multiple provisional measures orders from the ICJ; the application for arrest warrants by the ICC Office of the Prosecutor; and widespread condemnation from across the international community would have caused a drastic change in behavior. But it did not. It would have cost Israel little or nothing to allow food and medicine to reach civilians in need, or to refrain from mass casualty bombings. The report concludes that Israel’s persistence in the face of warnings, pressure, and censure convincingly demonstrates a firm and durable intent to starve and kill the Palestinians of Gaza.

The Standard of Proof

Amnesty’s report adopts the high standard of proof required to establish genocide at the ICJ. The Court must be fully convinced that a State acted with genocidal intent. Absent the announcement or discovery of a “general plan” to destroy a group, the existence of genocidal intent must be “convincingly shown by reference to particular circumstances.” For the Court to infer genocidal intent from a pattern of conduct, the “intent to destroy the group, in whole or in part, must be the only reasonable inference which can be drawn from the pattern of conduct.” At the same time, the report explains that:

the state can have additional goals and purposes, as long as it is clear, and is the only reasonable inference, that the state also has the intent to destroy the group, in whole or in part. To construe the law otherwise would make the prohibition of genocide meaningless in armed conflicts, where there will almost always be military goals at play as well.

If the only reasonable inference which can be drawn from the pattern of conduct is that the acts were committed with both the specific intent to destroy the group and military aims, then the ICJ’s standard of proof is satisfied. Conversely, if the evidence permits a reasonable inference that the acts were committed exclusively with military aims (or exclusively with any other non-genocidal aims), then the standard of proof is not satisfied. Put another way, if the pattern of conduct can be fully explained by a non-genocidal intent, then the standard of proof is not satisfied. But if the pattern of conduct can be fully explained only by a combination of genocidal intent and non-genocidal intent, then the standard of proof is satisfied.

Again, Amnesty’s legal position is consistent with the ICTY and ICJ’s decisions regarding the Srebrenica massacre. The intent to eliminate the threat posed by Bosnian Muslim fighters might explain (though not justify) their execution, but that intent could not fully explain the indiscriminate killing of civilian men and boys, the elderly and the disabled. The intent to expel the group and control the territory might explain the forcible displacement of women and children, but that intent could not fully explain the combination of mass murder and forcible displacement. The pattern of conduct as a whole could only be fully explained by the combination of the intent to destroy the group with these other intentions, and this combination of intentions was the only reasonable inference that could be drawn. In contrast, the ICJ understood the ICTY to have found that the killing of thousands of Croats could be fully explained by the unlawful but non-genocidal intent to forcibly displace the group without destroying them.

The report’s conclusion is unequivocal and unmistakable:

The evidence presented in the report clearly shows that the destruction of the Palestinians in Gaza, as such, was Israel’s intent, either in addition to, or as a means to achieve, its military aims. There is only one reasonable inference that can be drawn from the evidence presented: genocidal intent has been part and parcel of Israel’s conduct in Gaza since 7 October 2023, including its military campaign.

The ICJ’s standard of proof is high. While South Africa must meet the ICJ’s standard in its case against Israel, Amnesty International could have taken a different approach. Amnesty could have applied the lower standards of proof commonly applied by international fact-finding missions and commissions of inquiry, such as “reasonable grounds” or “balance of probabilities.” The report more than satisfies these standards.

Alternatively, Amnesty could have limited itself to finding that there is a serious risk that Israel is committing genocide. Such a serious risk triggers the legal obligation of all States Parties to the Genocide Convention to prevent genocide in Gaza (which the report also urges). The report more than satisfies this standard. The legal duty of all States to prevent genocide in Gaza is clearly engaged.

Instead, Amnesty chose to hold itself to the highest standard of proof known to public international law. This choice likely reflects Amnesty’s confidence in its evidence and legal analysis, as well as its understanding of the gravity of its accusation.

Criticisms

Unsurprisingly, the report has received criticism from a variety of sources. One line of criticism alleges that the report applies “an alternative test not based on the established jurisprudence of the ICJ.” This criticism reflects a misunderstanding. As explained above, Amnesty’s report applies settled law. In one passage, the report cautions against an “overly cramped” reading of ICJ case law that “that would potentially preclude a state from having genocidal intent alongside one or more additional motives or goals in relation to the conduct of its military operations.” The report then explains why the case law does not support such a reading. Indeed, the Court’s finding that the Srebrenica massacre was an act of genocide definitively excludes such a reading. We must interpret the Court’s general statements of law in light of its specific conclusions. If the evidence permits only one reasonable inference, namely that a State acted with genocidal intent, then it is no defense that the State also acted with other intentions.

A second line of criticism has more legal substance. Amnesty argues that Israel’s pattern of conduct in Gaza cannot be explained by an intent to destroy Hamas combined with reckless indifference toward the consequences for Palestinian civilians. This pattern of conduct clearly demonstrates an intent to kill, maim, and starve Palestinians. However, some suggest that the evidence permits a reasonable inference of war crimes and crimes against humanity short of genocide, including collective punishment, “ethnic cleansing” (forcible displacement), and the targeted killing of civilians. Each discrete act may be intended to kill and harm individuals, often in large numbers and on the basis of their national identity, in violation of international law. But, according to this line of argument, these acts are not linked together by an overarching intent to destroy the group, and so do not satisfy the legal definition of genocide.

Perhaps anticipating this line of criticism, the report argues that these acts must be viewed “together and cumulatively, taking into account their recurrence and their simultaneous occurrence time and time again, compounding each other’s harmful impact,” considering “the scale and severity of the casualties and destruction repeated over time.” The recurrence of these acts indicates that they were either ordered or allowed to continue by senior officials with the intent to bring about their known results. The compounding effect of these acts – most notably, denial and obstruction of humanitarian aid combined with widespread destruction of medical and food systems – indicates that these acts were integrated components of an overarching plan. The scale and severity of the death and destruction indicates that there is no internal, self-imposed limit to Israel’s intent to destroy. It appears there is no number of civilians which Israeli leaders are not prepared to kill, maim, and starve; no point at which they would say that “enough is enough,” and stop short of the destruction of the group, in whole or in part, as such. This, I believe, is what Amnesty means when it says that the totality of the evidence it has gathered, viewed comprehensively and holistically, excludes any reasonable inference except one: an intent to destroy the Palestinians of Gaza, as such.

Conclusion

Under international law, there is no hierarchy of international crimes. In principle, war crimes or crimes against humanity may be as serious, or even more serious, than an act of genocide. Their relative gravity will depend primarily on the number of victims and the magnitude of harm. Amnesty’s report documents serious violations of international humanitarian law, including intentional attacks against civilians, indiscriminate and clearly disproportionate attacks, arbitrary denials of humanitarian access, the use of starvation as a method of warfare, forcible displacement, wanton destruction, and torture.

Why, then, is it important to establish whether or not Israel’s manifestly unlawful conduct in Gaza is performed with a specific intent – the intent to destroy a group, in whole or in part? This specific intent does not determine the legality of this conduct, let alone its moral permissibility. But the intent with which illegal and immoral conduct is performed can affect its meaning. Intent can affect how victims understand, and how we collectively explain, that conduct. Intent determines the names that the law gives to that conduct. And one of those names is genocide.

Every State Party to the Genocide Convention has a legal obligation to prevent genocide. As the ICJ explains, this legal obligation arises

at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.

At a minimum, Amnesty’s report demonstrates a serious risk that Israel is committing genocide in Gaza, which every State Party has a legal obligation to prevent. At the same time, the basic rules of international humanitarian law; the prohibition of crimes against humanity; and the prohibition of genocide are all peremptory norms of general international law (jus cogens). All States have a legal obligation to cooperate to bring serious breaches of these peremptory norms to an end. They must do so now.

IMAGE: (L-R) Amnesty International Advisor on Economic, Social, Cultural Rights Middle East and North Africa Regional Office Kristine Beckerle, Amnesty International Secretary general Agnès Callamard, Amnesty International Head of Centre for International justice Matt Cannock present their latest report on Israel’s war on Gaza during a press conference on Dec. 4, 2024 in The Hague, Netherlands. (Photo by Pierre Crom via Getty Images)

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