Reading Lemkin Today: Is Genocide Law Fit for the Purpose He Intended?
Paul O’Brien*[1]
On December 5, 2024, Amnesty International published a major research report on the international human rights crime of genocide. The report, You Feel Like You Are Subhuman: Israel’s Genocide against Palestinians in Gaza,[2] found a genocide had already taken place in Gaza and is ongoing.
Across most of the globe, the publication was received positively by media, by governments and by human rights activists and legal scholars as a contribution to understanding genocide law and what is actually going on in Gaza today. [3] In the United States, and Israel in particular, however, some officials and critics have claimed that Amnesty was, at best, inaccurately representing the facts on the ground and misinterpreting the law on genocide.[4] Instead, they argued, Israel’s actions in Gaza were legitimate acts of self-defense intended and limited to secure Israel after the attacks by Hamas and other armed groups on October 7, and to return the hostages.[5]
The debate over Israel’s true “intent” in Gaza is critically important as the Convention on the Prevention and Punishment of the Crime of Genocide (1948) or “Genocide Convention”[6] defines genocide in terms of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”[7](emphasis added).
In this piece, I do not reflect on Amnesty’s research, legal analysis or conclusions — the report speaks for itself.
Instead, having read histories and commentaries about the origins of genocide law, and the jurisprudence before the International Court of Justice (ICJ) today, I offer some personal reflections on two questions for human rights practitioners and activists: (I) What lessons can we take from that history? and (II) Can we hope for better human rights protection of groups and populations under attack in the coming years?
As populist authoritarians increasingly frame narratives to attack whole groups based on their nationality, race, ethnicity, religion, gender, or sexual orientation, now may be the time to recenter protection for groups in international law. In doing so activists and international courts can assert the relevance of international human rights in this moment.
1. What lessons can we take from the origins and early years of genocide law?
With the crime of genocide now being adjudicated before the ICJ—Israel’s treatment of Palestinians in Gaza[8]and Myanmar’s treatment of the Rohingya[9]—the question of whether to protect individuals “as individuals” or as part of a “national, racial, ethnical or religious” group is once again being debated in the legal and human rights world.
In Philippe Sands wonderful book, East West Street (2016),[10] we meet two architects behind this struggle, two Jewish intellectuals, Rafael Lemkin and Hersch Lauterpacht, who had fought to strengthen international law, in part because of their intellects and determination, and because of their own life stories.
1. A. Rafael Lemkin and the Origins of ‘Genocide’
Rafael Lemkin (1900–1959), a Jewish-Polish lawyer who escaped Poland in 1939, coined the term “genocide” in his 1944 book Axis Rule in Occupied Europe by blending the Greek word “genos” (meaning “social group”) and the Latin suffix “cide” (meaning “killing”). Lemkin had lost forty-nine relatives in the Holocaust.[11]
Rafael Lemkin’s most prized possessions, moving from Poland to Sweden in 1941 and on to North Carolina in the United States, were suitcases of Nazi decrees and other documents demonstrating patterns of Nazi conduct across newly occupied territories of the Reich. Drawing from almost four hundred pages of those decrees, which he annexes in Axis Rule,[12] Lemkin concluded that genocide “is intended to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.”[13]
What is so striking in Axis Rule is how Lemkin used these decrees to structure his argument. In the core section titled “Techniques of Genocide in Various Fields” Lemkin first survey the political destruction of national character including how lands and peoples under occupation are first annexed and then taken over by settlers;[14] he then reviews patterns of social and cultural destruction which endeavor “to bring about such changes as may weaken the national spiritual resources” by attacking the intelligentsia and destroying national monuments, archives museums and burning books.[15]
Turning to economics, he concludes that “the destruction of the economic existence of a national group necessarily brings about a crippling of its development” noting that “a daily fight literally for bread and for physical survival” can destroy a group.[16]
Contrary to assumptions that Lemkin focused mainly on the use of violence to commit genocide, he only considers how Nazi’s used physical harm late in his genocide chapter, and even there, begins by analyzing “racial discrimination in feeding”,[17] then looks at “the endangering of health” by how “Jews in the ghetto are crowded together under conditions of housing inimical to health,” causing “the development of various diseases.”[18] Only then, towards the end of the chapter, does he document “mass killings.”[19]
1. B . Hersch Lauterpacht’s different vision for international law
While Lemkin was scrupulously building his case for the international crime of genocide, Hersch Lauterpacht (1897–1960) was seeking to drive international law in a different direction.
Lauterpacht was born to a Jewish family near Lviv in Ukraine, where he went to university. After some time in Vienna, he moved to the UK in 1923, became a British citizen and later a renowned international legal scholar at Cambridge University.[20] He did not share Lemkin’s views on genocide as a crime. Lauterpacht believed that human rights and the law more generally should protect individual human beings and not groups. Mass extermination of civilians was in his view, a “crime against humanity,” a term which had been used by the Allies in 1915 to describe the killings of Armenians by the Ottoman empire.[21]
While Lauterpacht never explained why he rejected genocide as a crime, Sands concludes that Lauterpacht feared protecting identity groups could inadvertently lead to more group based-harms. As Sands tells it, Lauterpacht’s view was motivated by a desire to reinforce the protection of each individual, “irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it.” By focusing on the individual, not the group, Lauterpacht wanted “to diminish the force of intergroup conflict. It was a rational, enlightened view, and also an idealistic one.”[22]
Sands then goes on to recognize Lemkin’s key insight that “individuals were targeted because they were members of a particular group, not because of their individual qualities.”[23]
1. C. The Decisions in Nuremburg
The different Lemkin and Lauterpacht visions were center stage during the Nuremburg trials. Both men knew that the trials would be the key launch platform for human rights law, post-World War II. While the World War II “victorious” nations—the United States, France, England and Russia—agreed that international law needed new tools to prevent a state like Nazi Germany decimating populations under its control, they did not agree on the best way to do so, and a legal contest ensued from the end of the war in 1945 through to 1948 and beyond. [24]
Both Lemkin and Lauterpacht sought to reach the key prosecutors for these four states to make their case. Based in the United States, Lemkin had perhaps the harder case to make. The United States, and Robert Jackson (the lead US prosecutor) in particular, was particularly resistant, both to Lemkin’s direct involvement[25] and the larger vision of a genocide law. Jackson had argued publicly in the aftermath of Hiroshima and Nagasaki “that modern war has become more and more a struggle between whole populations, not between armies alone. The issue is which shall be subjugated and which will survive.”[26]
Lauterpacht was far more successful and essentially wrote parts of key statements of the lead British prosecutor in Nuremburg,[27] Hartley Shawcross, who framed much of his case against the German defendants as “crimes against humanity.” [28] In the end, crimes against humanity were listed in the statute as within the jurisdiction of the International Military Tribunal at Nuremburg and the final judgment, while genocide was not.[29]
1. D. The birth and first half-century of the Genocide Convention
For a brief moment after Nuremburg, it seemed that modern human rights law would focus exclusively on punishing crimes against individuals and not crimes against groups. Yet, as the reality of the Holocaust became more widely known in post-war years, Lemkin’s relentless and often creative advocacy became more resonant.[30] More and more states and the United Nations saw the importance of protecting groups as groups. In less than three years, on December 9, 1948, the United Nations adopted the Convention on the Prevention and Punishment of Genocide, also known as “the Genocide Convention”—its first multilateral human rights treaty.[31] As a Convention, it imposed specific legal obligations on those states that ratified it, which Israel did in 1950 and the United States did in the 1980s.
Ironically, only the day after the genocide convention was adopted, the UNGA then adopted the Universal Declaration of Human Rights (UDHR). Rather than celebrate this moment, Hersch Lauterpacht was distraught. It mattered not that the UDHR detailed the basic rights and freedoms of individuals, a vision he had laid out so comprehensively in his book An International Bill of Rights of Man,[32] because it didn’t have an enforcement mechanism. While the Genocide Convention had created a pathway to hold states legally responsible for genocide only the day before, the UDHR offered no such mechanism. At the UN, consensus fell apart on the draft International Covenant on Human Rights which would have created an enforceable treaty.[33] It wasn’t until the European Convention on Human Rights, which entered into force in 1953, that Lauterpacht saw individual human rights enshrined in enforceable law in a multi-state treaty, albeit just in Europe.[34] It took another two decades for the two UN conventions on civil and political rights and on economic, social, and cultural rights to enter into force.
It wasn’t until the Rome Statute (adopted in 1998 and enforced in 2002) created the International Criminal Court (“ICC”) and laid out eleven crimes that a treaty specifically enumerated “crimes against humanity.”[35]Since then, the ICC has issued sixty-eight arrest warrants and tried more than thirty cases to prosecute crimes against humanity (which include murder, extermination, enslavement, and apartheid) as well as genocide.[36]Because the ICC is a criminal court with jurisdiction to prosecute individuals, not states, all of those cases were against individuals.[37]
In significant contrast, the ICJ faces two jurisdictional limits that do not constrain the ICC. First, it cannot try crimes against humanity because it exists to adjudicate cases based on treaty law. And second, its jurisdiction allows it to try treaty violations by states, not crimes committed by individuals. [38]
For more than forty years until the Rwanda and former Yugoslavia cases in the 1990s, there was zero deepening of genocide law. There are two reasons for this: political opposition by the major powers and limited case law.
The United States played an important role both in bringing the Genocide Convention into being and then weakening its power. Despite Lemkin’s advocacy from Washington D.C., US delegates having a strong hand in drafting the convention and President Truman’s leadership on this issue, it took the US almost forty years to ratify the Genocide Convention in 1986, and that was largely because one senator, William Proxmire (D-WI), made more than 3200 speeches (every day the senate was in session from Jan 11, 1967 to Feb 19, 1986), calling for its ratification.[39]
In a Pulitzer Prize winning work, A Problem from Hell: America and the Age of Genocide, Samantha Power concludes after deeply studying US responses to genocides in Cambodia, Iraq, Bosnia, Rwanda, Srebrenica, and Kosovo, that “this country’s consistent policy of nonintervention in the face of genocide offers sad testimony not to a broken American political system but to one that is ruthlessly effective…. No US President has ever made genocide prevention a priority, and no US President has ever suffered politically for its indifference to its occurrence.”[40]
Why were the US Senate and successive US Presidents so reluctant to ratify and use this convention? Beyond a general strong aversion to any infringements on US sovereignty, one key reason was racial politics in the United States. As Carol Anderson’s book, Eyes off the Prize powerfully documents, as the world woke up to the horrors wrought by white supremacists in Nazi Germany, African American leaders sensed an important opportunity to ground the struggle for racial equality in the USA in human rights law.[41]
One of the first accusations of genocide submitted to the UN in 1945 was We Charge Genocide by the Civil Rights Congress, concerning the treatment of Black people in the American South (documenting in great detail the lynching of more than 10,000 African Americans).[42] As Anderson’s research reveals, the State Department encouraged by US senators from the South, and appeased in part by President Truman and Eleanor Roosevelt, ensured that the charge of genocide and international human rights law generally would not impose obligations on US states that would require a racial reckoning.[43] When the US finally ratified the Genocide Convention, in 1986, it made a “reservation” ensuring that it was obliged only to prevent and punish but could not itself be prosecuted for genocide under international law without its consent.[44]
Perhaps it is not surprising, therefore, that since 1948, only three times have UN-sanctioned international courts and tribunals found the crime of genocide committed: the International Criminal Tribunal for Rwanda for the genocide of Tutsis, the International Criminal Tribunal for Former Yugoslavia for the genocide of Muslim boys and men in the Srebrenica, and the Extraordinary Chambers in the Courts of Cambodia (for the genocide by Khmer Rouge.[45] It took the ICJ fourteen years to decide the Srebrenica case, and this was after the conflict was over.[46]
2. Will we see more international human rights protection of groups and populations under attack in the coming years?
Situating the history of the Genocide Convention in today’s realities and in light of the cases before the ICJ, this article suggest why the protection of groups from authoritarian attacks generally, and genocide law in particular, may become more relevant in human rights work in the coming years: (1) Today’s authoritarian trends require more legal protection for groups, (2) that protection can be strengthened by learning from Lemkin’s original intent, and (3) the jurisprudence at the ICJ demonstrates a closer fealty to Lemkin’s intent, which may ultimately rescue the relevance of genocide law towards the protection of groups from destruction.
2. A.Today’s Authoritarian Trends Require More Legal Protections for Groups
Today, as populist authoritarians increasingly frame narratives to attack whole groups as groups, and the reality and risks of more genocides are before us, human rights activists need to think of new ways to recenter protection for groups in international law.
In a sense, the Lauterpacht world view still holds—by protecting individual rights, protection from threats based on group identity is already baked into the founding documents of human rights law. “All human beings are born free and equal in dignity and rights” begins Article I of the Universal Declaration of Human Rights, while Article II declares everyone entitled to rights and freedoms “without distinction” of any kind.[47] This means a person’s group identity cannot be used to limit their human rights.
To put it differently, if the first two articles of the UDHR were universally respected by sovereign states, genocide would be impossible. The real conceptual contribution of the genocide convention over the UDHR was less about creating a hierarchy of harms and more about recognizing that motives matter— the targeting of group members, not because of their individual identities but because of their group membership.
Lemkin understood, earlier than most, the catastrophic consequences of a populist ideology that was profoundly group-based, racist, and militant. He didn’t just recognize the patterns that collectively revealed genocidal intent, he knew how well the Nazi machine used the power of propaganda to control narrative and to dehumanize and ultimately destroy another population. His remarkable achievement was to turn the output of that machine against itself to piece together a disconnected set of facts into a story of what was really going on. His suitcases of Nazi decrees, lugged around the world, allowed Lemkin to discover not just patterns of conduct but to manifest the state intent within those patterns to destroy a population.
Facing today’s populist authoritarians who are unapologetic about taking a group-based world view, human rights activists face a dilemma how to fight together for a future where our human rights are guaranteed equally, regardless of our group identities, when our past experience of group identity profoundly shapes not just our individual power and our capacity to fight together, but can influence our motives. Today’s pro-rights advocates often imagine a future blind to group-based discrimination but recognize we can only achieve it with an honest telling of historic group-based power and oppression and how that shapes the seat at the table and how voices are used when one gets to that table.
The history of genocide through a lens that critiques who gets to frame that history might tell a different story. As Alonso Dunkelberg, recently wrote:
Finding a genocide is easy: open a history book, any history book, of any country, and start reading. Eventually, you will find one hidden behind some clever euphemism. Argentina “conquered the Desert,” Brazil “occupied the Amazon,” Chile “pacified the Araucanía,” Denmark “promoted birth control in Greenland,” Ethiopia “fought terrorism in Tigray,” France “colonized West Africa,” and so on.[48]
Dunkelberg concludes, however, that we now face “a legal regime designed to hide genocides, and which is in dire need of rescuing so it can finally fulfill its original potential” to legally prevent and punish the crime of genocide.[49]
I do not conclude here that the Genocide Convention was designed to hinder prosecution of the very crime it names, but I do share a view that if international law is to actually protect groups, it will need a more honest telling of its own history and an interpretation of the law closer to its stated purpose—to actually prevent and punish the crime of genocide. An analysis of Lemkin’s own words is helpful.
2. B. Learning from Lemkin with respect to challenges to the Genocide Law
The application of genocide law typically faces five challenges: (1) the specific intent threshold is high, (2) genocide cannot co-exist with other intents, (3) labeling genocide “the crime of crimes” implies a hierarchy in human rights law for those seeking justice for mass harms; (4) by centering group identity, it pits groups against each other, exacerbating the risks of further inter-group harms, and (5) because the law exclusively focuses on nationality, race, ethnicity and religion, it doesn’t protect other groups who are under threat.
Reading Lemkin’s work and commentaries around his work leads me to wonder how he would respond to those challenges today.
The specific intent threshold: Lemkin demonstrated patterns of conduct by manually collecting and analyzing written decrees across countries issued by the Nazi regime. By identifying political, social, cultural, economic, biological, physical and moral techniques he concluded that they “represent an elaborate, almost scientific system” that need to be understood as “a composite of different acts of persecution or destruction.”[50]
Philippe Sands writes about Lemkin’s method of establishing genocidal intent amongst the Nazi leadership:
“Lemkin followed the trail, the decisive steps that formed a pattern. The first step was usually the act of denationalization, making individuals stateless by severing the link of nationality between Jews and the state so as to limit the protection of the law. This was followed by dehumanization, removing legal rights from members of the targeted group. The two-step pattern was applied across Europe.”[51]
Consider this: What if Lemkin had access to today’s livestreamed testimonies, verified video footage and multiple recorded declarations by authorities in the case of Gaza? What if he had access to the documentary research done by the University Network for Human Rights and four law schools which found a genocide in Gaza,[52] or the research of Amnesty International which in the case of Gaza, has published hundreds of pages of evidence and analysis of those patterns?[53] What if (perhaps with some pride) he read the Lemkin Institute for Genocide Prevention’s statement on why we call the Israeli attack on Gaza Genocide, which documents how both Hamas and Israel have demonstrated genocidal intent and the latter had begun a genocide[54]?; What if he had seen the Israeli-Palestinian joint investigative reporting on the exponential increase in the use of artificial intelligence by the IDF, often with little human oversight, to target whole communities because one amongst their midst was identified as an enemy combatant?[55] I believe if Lemkin had access to all this evidence, he would have seen a pattern of conduct that met the specific intent threshold. That question will sit squarely before the ICJ in both the Myanmar and Gaza cases before it.
Co-existing intents: Scholar A. Dirk Moses, author of The Problems of Genocide: Permanent Security and the Language of Transgression[56] argues that the Holocaust was distinctive because of the nature of the oppression and the victim. In a piece titled “Why the International Community Made it So Difficult to Prosecute the Crime of Genocide”, [57] he quotes a powerful essay by Deborah Lipstadt who wrote of the Holocaust: “Jews did not have to do anything to be perceived as worthy of being murdered,” she explained. “Old people who had to be wheeled to the deportation trains and babies who had to be carried were all to be killed. The point was not, as in occupied countries, to get rid of people because they might mount a resistance to Nazism, but to get rid of Jews because they were Jews.”[58]
Moses’ conclusion is that because the Holocaust was the original sin, genocide is exclusively viewed by international law as “a massive hate crime against innocent victims—meaning they were not involved in military conflict, and were not killed by military necessity—the Holocaust shaped the ideal victim type.” Moses finds that the state architects of the genocide law in 1948 intended to ensure there would be no new constraints on warfare. If an aggressor also has a military intent, which may even include total war against a civilian population, they cannot also intend a genocide. As Moses concludes:
The grotesque nature of the law of genocide, however, is that victim numbers are irrelevant. All that counts is intent. If the intention is military rather than genocidal, many will argue not only that legitimate self-defense rather than genocide is taking place, but also that it is legal and even moral. Awful but lawful, as the saying goes, even if so-called “civilized” warfare is far more lethal than so-called “barbaric” violence.[59]
I don’t question whether some of the parties to the Convention sought to limit its applicability. But Lemkin himself drew a different conclusion, recognizing that war aims and genocidal aims can and did co-exist in World War II. As he wrote in Axis Rule:
In enforcing the New Order, the Germans prepared, waged, and continued a war not merely against states and their armies but against peoples. For the German occupying authorities war thus appears to offer the most appropriate occasion for carrying out their policy of genocide. Their reasoning seems to be the following: The enemy nation within the control of Germany must be destroyed, disintegrated or weakened in different degrees for decades to come…. Because the imposition of this policy of genocide is more destructive for a people than injuries suffered in actual fighting, the German people will be stronger than the subjugated peoples after the war even if the German army is defeated.”[60]
It does not surprise me at all therefore that so many interventions currently before the court seek to clarify that genocidal intent can of course co-exist with military and other aims, both as a means to those ends and as an end in itself to which other intents are the means.
The Crime of Crimes: Reading about Lemkin’s efforts to enshrine genocide in international law from 1945 to 1948, I have come to believe he regretted his much-cited claim that genocide was a greater human rights violation than all others. As Moses recalls:
“Lemkin who, in his tussle with the rival notions of human rights and crimes against humanity in the late 1940s, insisted that genocide is the ‘most heinous of all crimes. It is the crime of crimes.’ Now, 70 years later, this notion is the conventional wisdom and the central pillar of contemporary politics. Almost without fail those claiming to speak for an ethnic or national group invoke genocide to draw attention to the apparent persecution, expulsion and destruction.[61]
The “crime of crimes” moniker has haunted the implementation of genocide law and would in my view have given even Lemkin pause. Why? Because Lemkin never argued that human rights law had to choose between individual and groups. He would never have assumed a numerical hierarchy where war crimes involve fewer victims, crimes against humanity many victims and genocide an even greater number or all of a population. Human rights law has never had numerical thresholds of this nature.[62] And Lemkin in his analysis of genocide never articulated such thresholds. His concern was that people were being destroyed because they were part of a group, and he did not suggest that groups have to be of a certain size in order to merit protection.[63]
Inter-group tensions: It is conceivable that genocide law could result in exacerbating inter-group tensions by pitting groups against each other, but I’m confident that Lemkin would have considered that an acceptable burden to ensure protection for groups threatened with destruction. Lemkin was a pragmatist. When he conceived of “genocide”, there were no treaty protections for to prevent a sovereign power from whole identity groups under their control. Today, those protections remain far too weak—no state has ever been punished for a genocide under the Convention.[64] Lemkin would have wanted it to be used more as a legal tool, not less.
Missing groups: Finally, as populist authoritarians increasingly build support by oppressing or even physically removing groups who “don’t belong:” those now at risk in different countries are not only those identified by national, race, ethnicity and religion, but increasingly groups targeted because of their gender identity, sexual orientation, disability, place of birth, indigenous or immigration status. On this issue, I do not believe that Lemkin supported the application of genocide beyond national, racial, ethnical or religious groups. Across his tome, Axis Rule, I could find no reference, for example, to Nazi persecution of homosexuals despite homosexual acts being criminalized in 1933, and as many as 100,000 German men being arrested under Paragraph 175 during the Nazi regime.[65] His genocide chapter focusses exclusively on national groups and Jews. Nazi forms of othering crossed far more than racial lines, but for Lemkin, ever the pragmatist, and deeply focused on preventing and punishing the further destruction of an almost decimated Jewish population, that was a bridge too far.
2. C. Current jurisprudence on intent at the ICJ
How relevant will any of this history be in the thinking of the International Court of Justice today? Reviewing the cases made by the parties and the State interventions currently before the court, might the Court frame an understanding of genocide law closer to Lemkin’s original intent?
The ICJ faces a pivotal moment in its history and its relevance—it is the only international court that has jurisdiction to adjudicate mass killings by states. Even if the Convention on the Prevention and Punishment of Crimes against Humanity which Amnesty International[66] and other major human rights organizations[67] have advocated for, becomes international law (which will be by 2029 at the earliest), it is not certain to give the ICJ unconditional jurisdiction to adjudicate cases between states.[68] (The Rome Statue empowers the ICC to prosecute individuals for both crimes against humanity and genocide).[69]
It is worth considering how the court has looked at the issue of specific intent and how it may do so in the cases currently before it.
The major ICJ cases to address the issue of genocidal intent in this century are Bosnia v. Serbia (2007)[70]and Croatia v. Serbia (2015).[71] Bosnia v. Serbia considered whether Serbia committed genocide as a state, against Bosnian Muslims. While the ICJ helpfully held that a state could bear responsibility for genocide under the Genocide Convention, and that individuals in the Serbian military had been rightly held responsible for genocide of Muslim men and boys in Srebrenica by the International Criminal Tribunal for Former Yugoslavia, the ICJ also found that in that particular context, based on the facts before them, the specific intent standard against the state of Serbia as a whole had not been met.[72]
Importantly, however, it clarified the jurisprudence as follows:
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 of its existence, it would have to be such that it could only point to the existence of such intent. [73] (emphasis added)
In Croatia v. Serbia (2015) the court helpfully clarified that the Bosnia v. Serbia Judgment “accepted the possibility of genocidal intent being established indirectly by inference.” And “the notion of reasonableness must necessarily be regarded as implicit in the reasoning of the Court.[74]”
In other words, the ICJ acknowledged that circumstantial evidence could meet the threshold as long as the only reasonable inference to be drawn from that pattern of conduct was the existence of genocidal intent. That ruling not only drove Amnesty International’s research in its recent report, but it is also at the heart of key state interventions in the current cases on Myanmar and Gaza.
Under the ICJ’s Statute, Article 63 (2), when the construction of a convention is in dispute, State parties are permitted to intervene to propose how the convention should be understood. Importantly, the purpose of the intervention procedure is not to change the law, but to interpret it more effectively, and to advance its original intent.[75]
Since South Africa brought its case against Israel[76], and the ICJ ordered Israel to take provisional measures[77] to prevent genocide,[78] incitement to genocide,[79] and to report on its progress in so doing[80]Israel objected and asserted it rights to defend itself and to secure the release of the hostages.[81]
Twelve parties have sought to intervene in the ICJ case (Nicaragua,[82] Colombia,[83] Libya,[84] Mexico,[85] Palestine,[86] Spain,[87] Turkey,[88] Chile,[89] the Maldives, Bolivia,[90] Ireland[91] and most recently Cuba[92]). Every intervention, including Turkey’s, which continues to dispute the Armenian genocide, supports the Court’s review of whether a genocide is ongoing in Gaza, and to the extent they speak to the issue of genocidal intent, they argue that the Croatia v. Serbia “only reasonable inference” standard can and should be applied thoughtfully. The Irish intervention is most detailed in this regard and argues:
- Knowledge of foreseeable consequences is enough: Specific intent can be inferred where a reasonable person would have foreseen that the natural and probable consequence of the acts of the perpetrator was to destroy the group. As Ireland argues: “This is on the basis that the greater the probability of a consequence, the more likely that it has been foreseen, and if foreseen, the greater the likelihood that it is also intended”.[93] The perpetrator does not need to have as his or her purpose the commission of the crime of genocide when committing any one or more of the material elements of the crime.[94] The crime may also be committed where the perpetrator knows or should know that the probable consequence of those acts is to destroy the group. In other words, the intent standard is met by “knowledge of foreseeable consequences.”[95]
- A pattern of conduct revealed by circumstantial evidence is enough: In the absence of direct evidence of a policy or campaign, genocide may be established by consideration of indirect or circumstantial evidence, including evidence of a general pattern of widespread and systematic acts directed at the protected group which leads to their destruction.[96]
- The only reasonable inference test: Ireland proposes the use of the “only reasonable inference test,” citing Croatia v. Serbia (2015), and makes clear that the test of genocidal intent may still be met when there are other intents such as military objectives that co-exist. As Ireland writes:
“A clear example of this is where genocide is committed during the course of an armed conflict where two reasonable inferences might be drawn from the conduct of the State concerned–both that it sought to defeat the enemy and that it intended to destroy a protected group in whole or in part.[97]
- Genocidal intent can co-exist with other intents. That a pattern of conduct could only point to the existence of genocidal intent is not to say that it could point to such intent only. The Irish Intervention notes “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”.[98] It then cites Judge Bhandari’s separate opinion in Croatia v. Serbia where he noted “genocidal intent may exist simultaneously with other, ulterior motives.”[99]
In other words, the ICJ has never ruled that a state can avoid its responsibilities under the genocide convention by demonstrating they had other intentions as well (including the intention to protect themselves against future threats).
Conclusion
Never before has the ICJ had to grapple with two cases on genocide simultaneously. With South Africa v. Israel and The Gambia v. Myanmar currently before the court and many interventions in both cases by third party states, the understanding of the law is likely to evolve. Hopefully the jurisprudence in these cases will move forward in time to do what the title of the Convention inferred it would—prevent a genocide before it has been fully completed. My hope is that in grappling with the questions before the court, the judges consider the origins of genocide law, and how Rafael Lemkin himself might have looked at those cases had he been advising them today.
* Paul O’Brien is the Executive Director of Amnesty International USA and a graduate of Harvard Law School, Class of 1993.
[1] This piece is a personal reflection. Any discrepancies or inconsistencies between this piece and the policies or positions of Amnesty International, is the author’s responsibility alone and in no way amends Amnesty’s analysis on either genocide law or the facts of particular cases.
[2] Amnesty Int’l, “You Feel Like You Are Subhuman”: Israel’s Genocide Against Palestinians in Gaza (2024), https://www.amnestyusa.org/wp-content/uploads/2024/12/You-Feel-Like-You-Are-Subhuman-Israels-Genocide-Against-Palestinians-in-Gaza.pdf [https://perma.cc/XM2R-BXBU].
[3] See e.g. ‘This is genocide’: Amnesty International accuses Israel of Gaza genocide, MSNBC (Dec. 5, 2024), https://www.msnbc.com/all-in/watch/-this-is-genocide-amnesty-international-accuses-israel-of-gaza-genocide-226334277543 [https://perma.cc/3KVW-56KF] (where US media coverage was tough but fair).
[4] Most often, however, the critiques of Amnesty have not concerned the substance of the report, but Amnesty’s motives. By deciding to research and publish this report, some critics argue, Amnesty International has lost its impartiality as a human rights organization grounded in law and facts. Despite these critiques, Amnesty stands by its report and the nearly three hundred pages of research, legal analysis and recommendations. The findings are based on hundreds of interviews, months of field research in Gaza, scrutiny and verification of huge amounts of video, photo and other reported evidence of the live streamed catastrophe in Gaza, and deep analysis of more than 100 statements by Israeli officials. For an example which covers the critique in Israel and the United States. See Samy Magdy, Amnesty International says Israel is committing genocide in Gaza. Israel rejects the allegations, AP News (Dec. 5, 2024), https://apnews.com/article/israel-palestinians-hamas-war-rights-amnesty-genocide-19aa8fb76f7271942e73d5d7a42434e0 [https://perma.cc/C23X-ZE8D].
[5] Amnesty International has documented Hamas attacks on October 7 as war crimes and continues to call for Hamas to be held accountable. See e.g. Israel: Palestinian armed groups must be held accountable for deliberate civilian killings, abductions and indiscriminate attacks, Amnesty Int’l (Oct. 12, 2023), https://www.amnesty.org/en/latest/news/2023/10/israel-palestinian-armed-groups-must-be-held-accountable-for-deliberate-civilian-killings-abductions-and-indiscriminate-attacks/ [http://perma.cc/KTS8-U9P9].
[6] G.A. Res. 267 (III) A, Convention on the Prevention and Punishment of the Crime of Genocide (Dec. 10, 1948).
[7] Id. Art II.
[8] Latest Developments of South Africa v. Israel, I.C.J., www.icj-cij.org/case/192.
[9] Latest Developments of The Gambia v. Myanmar, I.C.J., www.icj-cij.org/case/178.
[10] Philippe Sands, East West Street: On the Origins of ‘Genocide’ and ‘Crimes Against Humanity’ (Alfred A. Knopf 2016).
[11] Coining a Word and Championing a Cause: The Story of Raphael Lemkin, United States Holocaust Memorial Museum (last edited May 2023), https://encyclopedia.ushmm.org/content/en/article/coining-a-word-and-championing-a-cause-the-story-of-raphael-lemkin [https://perma.cc/AYR7-GBZT].
[12] Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress 267–636 (Carnegie Endowment for Int’l Peace 1944).
[13] Id. at 79.
[14] Id.
[15] Id. at 83–85.
[16] Id. at 85–86.
[17] Id. at 88.
[18] Id.
[19] Id at 88–89.
[20] Sands at 84.
[21] Understanding The Armenian Genocide (1915-1923), Genos Center (June 30, 2023), https://genoscenter.org/understanding-the-armenian-genocide-1915-1923/ [https://perma.cc/7SWX-KVCT].
[22] Sands at 281.
[23] Id.
[24] See generally Sands at 301-359.
[25] Despite Lemkin’s efforts, Robert Jackson did not recruit Lemkin to join his team of drafters and “said nothing of genocide” in a half day opening for the prosecution that was “powerful, incisive and elegant speech” despite several meetings with Lemkin before the trial. Sands at 332.
[26] Robert Jackson wrote this in The New York Times Magazine in September 1945. A. Dirk Moses, “Why the International Community Made It So Difficult to Prosecute the Crime of Genocide,” Democracy in Exile (December 19, 2023), https://dawnmena.org/why-the-international-community-made-it-so-difficult-to-prosecute-the-crime-of-genocide/ [https://perma.cc/R8HY-9G5L ].
[27] Shawcross’s legal arguments drew largely from Lauterpacht’s draft. Sands at 282.
[28] See generally Sands at 265-301.
[29] See e.g. Nuremberg Trials, United States Holocaust Memorial Museum (last edited Jan. 5, 2018), https://encyclopedia.ushmm.org/content/en/article/the-nuremberg-trials [http://perma.cc/5H9R-Z5JF].
[30] See generally Douglas Irvin-Erickson, The History of Raphael Lemkin and the Genocide Convention, in Handbook of Genocide Studies (David J. Simon & Leora Kahn eds., 2023).
[31] International Human Rights Law: A Short History, United Nations (Jan. 1, 2009), https://www.un.org/en/chronicle/article/international-human-rights-law-short-history [https://perma.cc/T8YV-VLQ7].
[32] Hersch Lauterpacht, An International Bill of the Rights Of Man (Oxford University Press 2013).
[33] See generally R.J. Vincent, Human rights in East—West relations, in Human Rights and International Relations (Cambridge University Press 2019).
[34] Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.
[35] Rome Statute of the International Criminal Court, Art. VII, July 17, 1998, 2187 U.N.T.S. 90.
[36] Cases, I.C.C., https://www.icc-cpi.int/cases.
[37] Id.
[38] Statute of the International Court Of Justice, Apr. 18, 1946, 33 U.N.T.S. 993.
[39] The Promise of a World without Genocide, United States Holocaust Memorial Museum (Feb. 18, 2011), https://www.ushmm.org/genocide-prevention/blog/promise-of-a-world-without-genocide [http://perma.cc/FXK8-5N7C].
[40] Samantha Power, A Problem from Hell: America and the Age of Genocide (2002).
[41] See generally Carol Anderson, Eyes Off the Prize: The United Nations and the African-American Struggle for Human Rights, 1944–1955 (2003).
[42] For an analysis of how the “systemic oppression of African Americans was (and, to some authors, is) a genocide,” see Alonso Gurmendi Dunkelberg, How to Hide a Genocide: Modern/Colonial International Law and the Construction of Impunity, 27 J. Genocide Res. 1 (2025).
[43] Anderson at 50–58.
[44] Reservations and Declarations to the Genocide Convention, Prevent Genocide Int’l, http://www.preventgenocide.org/law/convention/reservations/ [perma.cc/3UKM-9RH5].
[45] For Rwanda, see U.N. Intentional Residual Mechanism for Criminal Tribunals, About the Tribunal, International Criminal Tribunal for Rwanda, https://unictr.irmct.org/en/tribunal [https://perma.cc/FHZ8-SNBP]; for Former Yugoslavia, see U.N. Intentional Residual Mechanism for Criminal Tribunals, Homepage, International Criminal Tribunal for the former Yugoslavia, https://www.icty.org/ [https://perma.cc/G4KY-PRXX]; and Cambodia, see Homepage, The Extraordinary Chambers in the Courts of Cambodia, https://www.eccc.gov.kh [https://perma.cc/4MLX-8H9Y].
[46] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. 43 (Feb. 26), https://www.icj-cij.org/case/91 [https://perma.cc/968Q-G982].
[47] Universal Declaration of Human Rights G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), art I-II.
[48] Supra note 42, at 2.
[49] Id. at 1.
[50] Lemkin at 90.
[51] Sands at 169.
[52] University Network for Human Rights et al., Genocide in Gaza: Analysis of International Law and Its Application to Israel’s Military Actions Since October 7, 2023 (2024), static1.squarespace.com/static/66a134337e960f229da81434/t/66fb05bb0497da4726e125d8/1727727037094/Genocide+in+Gaza+-+Final+version+051524.pdf [https://perma.cc/Z844-7FZY].
[53] Supra note 2.
[54] Lemkin Institute for Genocide Prevention, https://www.lemkininstitute.com/ [https://perma.cc/9SDZ-G4HG].
[55] Yuval Abraham, “Lavender”: The AI machine directing Israel’s bombing spree in Gaza, +972 Magazine (Apr. 3, 2024), www.972mag.com/lavender-ai-israeli-army-gaza/ [https://perma.cc/M4MJ-T8A2].
[56] A. Dirk Moses, The Problems of Genocide: Permanent Security and the Language of Transgression 1–46 (Cambridge University Press 2021).
[57] See A. Dirk Moses, Why the International Community Made It So Difficult to Prosecute the Crime of Genocide, DAWN (Dec. 19, 2023), https://dawnmena.org/why-the-international-community-made-it-so-difficult-to-prosecute-the-crime-of-genocide/ [https://perma.cc/W9VM-U2YB]. Moses is also the author of the excellent book The Problems of Genocide: Permanent Security and the Language of Transgression.
[58] Deborah Lipstadt, The Trump Administration’s Flirtation With Holocaust Denial, The Atlantic (Jan. 30, 2017), https://www.theatlantic.com/politics/archive/2017/01/the-trump-administrations-softcore-holocaust-denial/514974/ [https://perma.cc/F5DX-RYNX].
[59] Supra note 57.
[60] Lemkin at 81.
[61] Moses, The Problems of Genocide at 25. Quoting Lemkin in “Genocide as Crime Under International Law” United Nations Bulletin, No. 4 (Jan. 15, 1948) at 70.
[62] As Declarants noted in the Myanmar case currently before the ICJ, “The Genocide Convention does not require in the determination of specific intent to destroy, there should be a focus on the numbers of victims killed”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam. v. Myan.), Joint Declaration of Intervention by Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom, ¶ 60, https://www.icj-cij.org/sites/default/files/case-related/178/178-20231115-wri-01-00-en.pdf.
[63] Philippe Sands, the author of East West Street, explained to me in conversation that “Lemkin’s concern was not the size of a group to be destroyed, or the number harmed, but the aim of destruction, and that he was not concerned with any particularly burdensome or special standard of intention. Moreover, his concern was not limited to physical or biological destruction, it went much wider. His bar was lower than that set by the 1948 Convention, or by international judges subsequently.” Conversation on Dec. 31, 2024.
[64] See adjudicated cases under International Court of Justice, https://www.icj-cij.org/cases-by-country [https://perma.cc/2LTG-NPF8].
[65] Gay Men under the Nazi Regime, United States Holocaust Memorial Museum, https://encyclopedia.ushmm.org/content/en/article/gay-men-under-the-nazi-regime [https://perma.cc/6BKL-VHQN].
[66] Global: States must negotiate a robust treaty on crimes against humanity after breakthrough resolution, Amnesty Int’l (Nov. 22, 2024), https://www.amnesty.org/en/latest/news/2024/11/states-must-negotiate-robust-treaty-crimes-against-humanity-after-resolution/[https://perma.cc/KJM2-HTML].
[67] Richard Dicker, Moving Ahead to a Crimes against Humanity Treaty, Human Rights Watch (Jan. 9, 2025, 3:06 PM), https://www.hrw.org/news/2025/01/09/moving-ahead-crimes-against-humanity-treaty [https://perma.cc/3QPB-DQ74].
[68] See generally Andreas Zimmermann & Felix Boos, Bringing States to Justice for Crimes against Humanity: The Compromissory Clause in the International Law Commission Draft Convention on Crimes against Humanity, 16 J. Int’l Crim. Just. 835 (2018).
[70] Supra note 46.
[71] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment, 2015 I.C.J. 3 (Feb. 3).
[72] That ruling may have been influenced by the fact that the President of Serbia at the time of the alleged genocide, Slobodan Milošević, had been overthrown in 2000 and died in 2006.
[73] Supra note 46, at ¶ 373.
[76] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Application Instituting Proceedings Containing a request for the Indication of Provisional Measures.
[77] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), 2024 I.C.J. ___ (Jan. 26).
[78] Id. at ¶ 78.
[79] Id. at ¶ 79
[80] Id. at ¶ 82.
[81] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Observations of the State of Israel on the Republic of South Africa’s “Urgent Request for Additional Measures Under Article 75(1) of the Rules of Court”, ¶ 8 (Feb. 12).
[82] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Application for Permission to Intervene by the Government of the Republic of Nicaragua.
[83] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention by the Republic of Colombia.
[84] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention of the State of Libya.
[85] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention by the United Mexican States.
[86] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Request for Intervention and Declaration of Intervention of the State of Palestine.
[87] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention of Spain.
[88] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention by the Republic of Türkiye.
[89] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention by the Republic of Chile.
[90] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention by the Plurinational State of Bolivia.
[91] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Declaration of Intervention by Ireland.
[92] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Déclaration D’Intervention de la République de Cuba.
[93] Supra note 92, at ¶ 28 (Hereinafter “Ireland intervention in Gaza case”).
[94] Id. at ¶ 29.
[95] Id. at ¶ 30.
[96] Id. at ¶ 34. The Chile Intervention reaches a similar conclusion arguing for “a holistic analysis of evidence, considering the overall factual picture within the context in which the acts occurred, and the pattern of conduct of the accused. Assessing all evidence, taken together, is an approach that aligns with the fluid concept of intent.” Supra note 90, at ¶ 32.
[97] Id. at ¶ 39.
[98] Id. at ¶ 38.
[99] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Separate Opinion of Judge Bandari, 2015 I.C.J. 3 (Feb. 3).