ICJs Specific Intent Standard for Genocide: An Obstacle to Accountability?

Under Article I of the 1948 Genocide Convention, states have a duty to “prevent and to punish” acts of genocide.[1]  This duty was expanded in 2005, during the UN World Summit, when the General Assembly adopted a resolution establishing the “responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”[2]  However, despite these two instruments, there is a consistent pattern of the international community’s incapacity to effectively intervene in unfolding genocides.[3]

The International Court of Justice (ICJ), “the principal judicial organ of the United Nations,” hears cases between states.[4]  In recent years, states have been turning to the ICJ to address such crimes, bringing actions directly against other states.[5]  While the International Criminal Court (ICC) was created to prosecute serious offenses like genocide, the ICC only prosecutes the crimes of individuals, not states.[6] The ICJ has only addressed four genocides in its history,[7] and while it has been helpful in issuing provisional measures to put pressure on states accused of genocide,[8] the ICJ has never found a state liable for the crime.[9] This means that despite states’ efforts to fulfill their responsibility to protect via actions in the ICJ, the court’s stringent standards have limited its ability to render conclusive decisions that definitively identify and address instances of genocide.[10]  This diminishes its potential to exert meaningful pressure on accused states.[11]

The Rohingya crisis in Myanmar is an example of how the “intent to destroy” standard can cause inaction and incapacitate the international community’s responses to genocide. For decades, Rohingya Muslims in Myanmar have faced discrimination on the basis of their religious and ethnic identity,[12] with the state going as far as to strip all Rohingya of their citizenship under the implementation of the 1982 Citizenship Law.[13]  At the same time, Rohingya Muslims have been subject to extreme violence and killings,[14] resulting in the displacement of hundreds of thousands of Rohingya civilians.[15]  Many independent organizations have alerted the world to a potential genocide being carried out against the Rohingya.[16] Moreover, the UN Human Rights Council’s independent international fact-finding mission on Myanmar found that “crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal intent to be established in other contexts.”[17] 

However, there have still been setbacks in holding Myanmar accountable.[18]  Despite Myanmar’s recent attacks on Rohingya civilians and outcries from other UN organizations and non-governmental organizations (NGOs), the Security Council has remained silent on the issue.[19] Moreover, in the face of escalating violence against the Rohingya and the Security Council’s inaction, states have turned to the ICJ to put an end to Myanmar’s actions.[20]  While the case has yet to be decided, the ICJ has rejected all of Myanmar’s preliminary objections, asserting its authority to hear the case.[21]

A key determining factor in the outcome of Gambia v. Myanmar is the ICJ’s approach to the “intent to destroy” standard of proof,[22] which, as outlined in Article II of the Genocide Convention, is a key requirement to prove “intent to destroy in whole or in part, a national, ethnical, racial or religious group.”[23]  While the standard is important to ensure the accusations of genocide are substantiated, the high evidentiary standard set by the ICJ makes it practically impossible to prove.[24]  Additionally, in genocide cases, the ICJ requires a state to have a special intent, dolus specialis, to commit the crime.[25]  This means that the evidence in question must point to intent to destroy as “ the only inference that could reasonably be drawn.”[26]  This standard poses an obstacle, as Myanmar “has always insisted it was tackling an extremist threat in Rakhine state,”[27] and states like Russia and China have backed this assertion, supporting the narrative that the conflict is internal[28] and shutting down Security Council attempts as intervention on the principle of state sovereignty.[29] 

The outcome of Gambia v. Myanmar will not only serve as a critical test of the ICJ’s ability to balance legal rigor with moral urgency when adjudicating genocide cases but will play a large part in determining the efficacy of states turning to the court in attempts at deescalating atrocities like genocide. 

The ICJ has demonstrated in previous judgments, the rigidity of its framework[30] for adjudicating genocide and its reluctance to find states guilty of genocide even in light of significant evidence.[31] In declarations of intervention, states have recommended the court take on a more holistic “reasonableness criterion” in deciding the Myanmar case. [32]  Such suggestions are critical to the greater discussion of the utility of the ICJ in upholding the Genocide Convention.[33]  In adopting a reasonableness approach, the ICJ would evaluate the evidence as a whole, weighing its collective significance rather than assessing the probative value of each piece of evidence separately to determine the existence of specific intent.[34]  For instance, the court would analyze circumstantial evidence and consider factors like forced displacement, violence perpetrated against children, sexual violence, and gender-based violence to prove intent to destroy before determining if they can collectively establish specific intent.[35] 

Given the ICJ’s past failures, there is growing skepticism about the court’s ability to successfully hold states accountable for genocide.[36]  Ultimately, adopting these changes would not only enhance the ICJ’s ability to hold states accountable for genocide, but it would also reaffirm its role as a meaningful mechanism for preventing and addressing mass atrocities under international law.

Amanda Núñez is a staff member of Fordham International Law Journal Volume XLVIII.

[1] See Convention on the Prevention and Punishment of the Crime of Genocide, approved and proposed for signature Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951).

[2] See G.A. Res. 60/1, U.N. Doc. A/RES/60/1, at 138–39 (Oct. 24, 2005).

[3] See Luke Glanville, The World’s Disturbing Inaction as the Genocide Convention Turns 70, The Conversation (Dec. 5, 2018), https://theconversation.com/the-worlds-disturbing-inaction-as-the-genocide-convention-turns-70-107783. (last visited Dec. 10, 2024).

[4] See International Court of Justice, https://www.icj-cij.org/court (last visited Jan. 24, 2025).

[5] Jill Goldenziel, Why Genocide Keeps Showing Up at the International Court of Justice, Forbes (Mar. 1, 2024), https://www.forbes.com/sites/jillgoldenziel/2024/03/01/why-genocide-keeps-showing-up-at-the-international-court-of-justice/.

[6] See Understanding the International Criminal Court (Int'l Crim. Ct. 2020), https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf.

[7] Id.

[8] See Israel Must Comply with Key ICJ Ruling Ordering It Do All in Its Power to Prevent Genocide Against Palestinians in Gaza, Amnesty Int’l (Jan. 2024), https://www.amnesty.org/en/latest/news/2024/01/israel-must-comply-with-key-icj-ruling-ordering-it-do-all-in-its-power-to-prevent-genocide-against-palestinians-in-gaza/. (Example of provisional measures issued by ICJ in a genocide case.)

[9] Research Society of International Law, Is the ICJ’s Standard of Proof for Genocide Unattainable? (2024), https://rsilpak.org/2024/is-the-icjs-standard-of-proof-for-genocide-unattainable/.

[10] Opinio Juris, Rethinking International Law After Gaza Symposium: Genocide at the ICJ: The Bosnia Case and Implications for Gaza (Oct. 8, 2024), https://opiniojuris.org/2024/10/08/rethinking-international-law-after-gaza-symposium-genocide-at-the-icj-the-bosnia-case-and-implications-for-gaza/#:~:text=As%20a%20result%2C%20the%20respondent,for%20failure%20to%20prevent%20it.&text=Near%2DImpossible%2C%20Impossible-,In%20Bosnia%20v.,195%2C%20219%2C%20etc (last visited Jan. 20, 2025).

[11] Id.

[12] Genocide Watch, A 2015 Genocide Warning: Applying Stanton’s 10 Stages to the Rohingya of Myanmar, (Dec. 11, 2019), https://www.genocidewatch.com/single-post/2019/12/11/a-2015-genocide-warning-applying-stantons-10-stages-to-the-rohingya-of-myanmar (last visited Dec. 10, 2024).

[13] Id.

[14] Human Rights Watch, “Nothing Called Freedom”: A Decade of Detention for Rohingya in Myanmar’s Rakhine State, https://www.hrw.org/content/382193 (last visited Dec. 10, 2024).

[15] Human Rights Watch, Myanmar: Armies Target Ethnic Rohingya in Rakhine, (Aug. 12, 2024), https://www.hrw.org/news/2024/08/12/myanmar-armies-target-ethnic-rohingya-rakhine (last visited Dec. 10, 2024).

[16] See Human Rights Watch, Rohingya, https://www.hrw.org/tag/rohingya (last visited Dec. 10, 2024).; see also World Without Genocide, Genocides and Conflicts: Myanmar, https://worldwithoutgenocide.org/genocides-and-conflicts/myanmar (last updated Oct. 2024).

[17] Rep. of the Independent International Fact-Finding Mission on Myanmar, ¶¶ 84–87, U.N. Doc. A/HRC/39/64 (Sept. 12, 2018).

[18]Edith M. Lederer, Russia and China block UN statement on Myanmar crisis, AP News (May 27, 2022) https://apnews.com/article/russia-ukraine-politics-asia-china-032418ad6c63394ce2968dd665f90633 (last visited Dec. 10, 2024).

[19] Human Rights Watch, The UN Security Council's Astonishing Silence on Myanmar Atrocities (Sept. 5, 2024), https://www.hrw.org/news/2024/09/05/un-security-councils-astonishing-silence-myanmar-atrocities (last visited Jan.20, 2025); see also ​​Al Jazeera, Rohingya Genocide Intensifying as War Rages in Myanmar’s Rakhine: BROUK (June 26, 2024), https://www.aljazeera.com/news/2024/6/26/rohingya-genocide-intensifying-as-war-rages-in-myanmars-rakhine-brouk;  see also Kyle Matthews & Allan Rock, The World’s Disturbing Inaction as the Genocide Convention Turns 70, The Conversation (Dec. 6, 2018), https://theconversation.com/the-worlds-disturbing-inaction-as-the-genocide-convention-turns-70-107783.

[20] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application Instituting Proceedings, 2019 I.C.J. (Nov. 11), https://www.icj-cij.org/sites/default/files/case-related/178/178-20191111-APP-01-00-EN.pdf.

[21] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Judgment on Preliminary Objections, ¶ 115(1)-(4), 2022 I.C.J. (July 22), https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf.

[22] See supra note 9.

[23] See Convention on the Prevention and Punishment of the Crime of Genocide, supra note 1, art. II.

[24] See supra note 10.

[25] See supra note 10.

[26] See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, l.C.J. Reports 2015, p. 3, para. 143; see also Dermot Groome, Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?, 31 Fordham Int’l L.J. 918 (2007) (“This unique mens rea imposes an additional and heavy burden of proof upon the party claiming that particular crimes constitute genocide.”)

[27] BBC News, Myanmar Rohingya: Suu Kyi rejects genocide claims at UN court, (Dec. 11, 2019) https://www.bbc.com/news/world-asia-50741094 (last visited Jan. 22, 2025).

[28] Wilson Center, Hidden Parallels: The Impact of Beijing’s Policies on the Rohingya Crisis, https://www.wilsoncenter.org/blog-post/hidden-parallels-impact-beijings-policies-rohingya-crisis (last visited Dec. 10, 2024).

[29] BBC News, Myanmar Coup: China Blocks UN Condemnation as Protest Grows, (Feb. 3, 2021) https://www.bbc.com/news/world-asia-55913947 (last visited Dec. 10, 2024).

[30] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Judgment, 2007 I.C.J. 43, ¶ 373 (Feb. 26). (“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.”); see also International Commission of Jurists, Questions and Answers on the Crime of Genocide: Legal Briefing Note, August 2018 (2018), https://www.icj.org/wp-content/uploads/2018/08/Universal-Genocide-Q-A-FINAL-Advocacy-analysis-brief-2018-ENG.pdf.

[31] Rebecca Hamilton & Richard J. Goldstone, Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia, 21 Leiden J. Int'l L. 1 (2008).​

[32] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Written Observations on the Merits, ¶¶ 52–54, 2023 I.C.J. (Nov. 15), https://www.icj-cij.org/sites/default/files/case-related/178/178-20231115-wri-01-00-en.pdf.

[33] See supra note 9.

[34] Id.

[35] Id. at ¶¶ 63–74.

[36] See supra note 10 (“The previous position taken by the ICJ can be seen as alarming and consequential not only to the case of South Africa v. Israel, but other ongoing and future cases related to genocide; it would behoove the ICJ to rethink its approach.”); see also supra note 9 (“The standard of proof is not only very high, but it almost sets up the applicant state at the ICJ for failure.”).

This is a student blog post and in no way represents the views of the Fordham International Law Journal.