The Irish submission to the International Court of Justice (ICJ) in the case against Israel seeks to influence the legal test the court will use when assessing whether genocide is taking place in the Gaza Strip.
Ireland’s intervention in the case taken by South Africa alleging genocide by Israel in Gaza, filed on Monday, has been received by the ICJ.
The case, first brought by South Africa in 2023, seeks a ruling by the court that Israel is in breach of the Genocide Convention, an international treaty that obliges states to act to prevent genocide where it is happening.
The UN court has previously made two rulings under the Convention on the Prevention and Punishment of the Crime of Genocide when genocide was alleged against Serbia following the collapse of Yugoslavia.
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In neither case did the court make a genocide finding against Serbia, though it did criticise it for not trying to prevent what happened in Srebrenica in July 1995, when more than 8,000 Bosnian Muslims were killed by Bosnian Serb forces. The slaughter was found by the court to be genocide, but not something that could be shown to be directed by Serbia.
[ Israeli strikes ‘kill dozens’ in Gaza amid stepped up ceasefire pushOpens in new window ]
There are currently two cases before the court involving allegations of genocide, one taken by South Africa against Israel, and the other taken by the Gambia against Myanmar. Ireland has made submissions to both. The Myanmar ruling will come first and give an indication as to the court’s developing view on genocide.
Under the convention, genocide involves acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. The listed acts include killing or causing serious bodily or mental harm to members of the group, imposing measures designed to prevent births within the group, and deliberately inflicting conditions calculated to bring about the group’s destruction in whole or in part.
Ireland, in its submission, has argued it is not necessary that direct evidence of a policy to commit genocide be produced. Indirect evidence can suffice, the State argues.
“This includes evidence of a general pattern of widespread and systematic acts directed at the protected group which leads to their destruction, in whole or in part, from which it can be inferred that the said destruction was the intended result or foreseeable consequence,” it says in the submission.
It submitted that the court should apply an “only reasonable interference” test when coming to its decision. To avoid genocide being excluded in most, if not all cases of armed conflict, the submission argues that the suggested test can allow for a finding of genocide even where the accused party had another motive for its actions.
“The human mind can of course accommodate and act upon more than one intention and the same conduct can be intended to achieve two or more results, however attainable they each may be,” the submission states.
“It follows that it is perfectly possible that a pattern of conduct, upon examination, could point to two separate intentions, only one of which is genocidal.”
The only reasonable inference suggestion is an important part of the Irish submission, according to Michael Becker, assistant professor of international human rights law at Trinity College Dublin.
He said that another important aspect of the case is the argument that repeated serious violations of human rights law by a state can be suggestive of genocidal intent.
A complicating factor in the debate on how to identify genocide is the question of retaining a distinction between genocide and war. If what Israel is doing in Gaza is genocide, why then is that not true of Russia in Ukraine?
The broader context of a conflict might need to be considered, according to Becker, such as the way people are confined in Gaza to a relatively small area.
This makes it “more logically possible to wipe out a whole people”, he said.
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