Ireland has filed an intervention document to the International Court of Justice as part of South Africa’s Case against Israel. In December 2023, South Africa instituted proceedings against Israel, alleging that Israel’s actions in Gaza amounted to genocide, breaching the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (The Convention), to which both South Africa and Israel are contracting parties.
South Africa alleges that Israel has violated the convention through acts such as “killing Palestinians in Gaza, causing serious bodily and mental harm, inflicting on them conditions of life calculated to bring about their physical destruction. In late January 2024, the Court made an order of provisional measures Israel must take, including taking all measures within its power to prevent the actions they were accused of doing.
While the case is ongoing Ireland has submitted its intervention to address how key provisions of the Convention should be interpreted in the abstract without engaging with any of the facts alleged by South Africa. Ireland’s intervention asks the ICJ to broaden its interpretation of what constitutes the commission of genocide by a State. Speaking with Irish Legal News, Michael Becker, assistant professor of law at Trinity College Dublin, specialising in international law and human rights, clarifies that the intervention makes no attempt to rewrite the definition of genocide or the meaning of genocidal intent, but rather is based on the key principle that genocidal intent can be derived from a policy or plan at a State level that intends the physical destruction of a group or that understands such destruction to be a foreseeable consequence of state action.
The intervention challenges the application of the “only reasonable inference test” for establishing genocidal intent, arguing that the test should not be applied in such a manner that it would lead to the possibility of genocide being excluded in most if not all cases of armed conflict. Ireland intervention points out that in reality genocide can take place in combination or in service of other objectives such as defeating a terrorist army. Ireland does not dispute that it must be the case that the evidence cannot be explained by anything other than genocidal intent.