Reading Lemkin Today: Is Genocide Law Fit for the Purpose He Intended?<\/p>\n
Paul O\u2019Brien*[1]<\/sup><\/a><\/p>\n 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\u2019s Genocide against Palestinians in Gaza,[2]<\/strong><\/sup><\/a> <\/em>found a genocide had already taken place in Gaza and is ongoing.<\/p>\n 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]<\/a> 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]<\/sup><\/a> Instead, they argued, Israel\u2019s 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]<\/sup><\/a><\/p>\n The debate over Israel\u2019s true \u201cintent\u201d in Gaza is critically important as the Convention on the Prevention and Punishment of the Crime of Genocide (1948) or \u201cGenocide Convention\u201d[6]<\/sup><\/a> defines genocide in terms of \u201cacts committed with intent to destroy,<\/em> in whole or in part, a national, ethnical, racial or religious group, as such.\u201d[7]<\/sup><\/a>(emphasis added).<\/p>\n In this piece, I do not reflect on Amnesty\u2019s research, legal analysis or conclusions \u2014 the report speaks for itself.<\/p>\n 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?<\/p>\n 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.<\/p>\n 1. What lessons can we take from the origins and early years of genocide law?<\/strong><\/p>\n With the crime of genocide now being adjudicated before the ICJ\u2014Israel’s treatment of Palestinians in Gaza[8]<\/sup><\/a>and Myanmar’s treatment of the Rohingya[9]<\/sup><\/a>\u2014the question of whether to protect individuals \u201cas individuals\u201d or as part of a \u201cnational, racial, ethnical or religious\u201d group is once again being debated in the legal and human rights world.<\/p>\n In Philippe Sands wonderful book, East West Street<\/em> (2016),[10]<\/sup><\/a> 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.<\/p>\n \u00a01. A. <\/em>Rafael Lemkin and the Origins of \u2018Genocide\u2019 <\/em><\/p>\n Rafael Lemkin (1900<\/em>\u20131959)<\/em>, a Jewish-Polish lawyer who escaped Poland in 1939, coined the term “genocide” in his 1944 book Axis Rule in Occupied Europe<\/em> by blending the Greek word \u201cgenos\u201d (meaning \u201csocial group\u201d) and the Latin suffix \u201ccide\u201d (meaning \u201ckilling\u201d). Lemkin had lost forty-nine relatives in the Holocaust.[11]<\/sup><\/a><\/p>\n Rafael Lemkin\u2019s 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<\/em>,[12]<\/sup><\/a> Lemkin concluded that genocide \u201cis 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.\u201d[13]<\/sup><\/a><\/p>\n What is so striking in Axis Rule<\/em> is how Lemkin used these decrees to structure his argument. In the core section titled \u201cTechniques of Genocide in Various Fields\u201d <\/em>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]<\/a> he then reviews patterns of social and cultural destruction which endeavor \u201cto bring about such changes as may weaken the national spiritual resources\u201d by attacking the intelligentsia and destroying national monuments, archives museums and burning books.[15]<\/sup><\/a><\/p>\n Turning to economics, he concludes that \u201cthe destruction of the economic existence of a national group necessarily brings about a crippling of its development\u201d noting that \u201ca daily fight literally for bread and for physical survival\u201d can destroy a group.[16]<\/sup><\/a><\/p>\n Contrary to assumptions that Lemkin focused mainly on the use of violence to commit genocide, he only considers how Nazi\u2019s used physical harm late in his genocide chapter, and even there, begins by analyzing \u201cracial discrimination in feeding\u201d,[17]<\/a> then looks at \u201cthe endangering of health\u201d by how \u201cJews in the ghetto are crowded together under conditions of housing inimical to health,\u201d causing \u201cthe development of various diseases.\u201d[18]<\/sup><\/a> Only then, towards the end of the chapter, does he document \u201cmass killings.\u201d[19]<\/sup><\/a><\/p>\n 1. B . Hersch Lauterpacht\u2019s different vision for international law<\/em><\/p>\n While Lemkin was scrupulously building his case for the international crime of genocide, Hersch Lauterpacht (1897\u20131960) was seeking to drive international law in a different direction.<\/p>\n 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]<\/a> 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]<\/a><\/p>\n 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\u2019s view was motivated by a desire to reinforce the protection of each individual, \u201cirrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it.\u201d By focusing on the individual, not the group, Lauterpacht wanted \u201cto diminish the force of intergroup conflict. It was a rational, enlightened view, and also an idealistic one.\u201d[22]<\/sup><\/a><\/p>\n Sands then goes on to recognize Lemkin\u2019s key insight that \u201cindividuals were targeted because <\/em>they were members of a particular group, not because of their individual qualities.\u201d[23]<\/sup><\/a><\/p>\n 1. C. The Decisions in Nuremburg<\/em><\/p>\n The different Lemkin and Lauterpacht visions were center stage during the Nuremburg trials. Both men knew that the trials would be the <\/em>key launch platform for human rights law, post-World War II. While the World War II “victorious” nations\u2014the United States, France, England and Russia\u2014agreed 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]<\/a><\/p>\n 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]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n Lauterpacht was far more successful and essentially wrote parts of key statements of the lead British prosecutor in Nuremburg,[27]<\/sup><\/a> Hartley Shawcross, who framed much of his case against the German defendants as “crimes against humanity.” [28]<\/a> 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]<\/a><\/p>\n 1. D. The birth and first half-century of the Genocide Convention<\/em><\/p>\n 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]<\/sup><\/a> More and more states and the United Nations saw the importance of protecting groups as groups. <\/em>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 \u201cthe Genocide Convention\u201d\u2014its first multilateral human rights treaty.[31]<\/sup><\/a> 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.<\/p>\n Ironically, only the day after<\/em> 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, <\/em>a vision he had laid out so comprehensively in his book An International Bill of Rights of Man<\/em>,[32]<\/sup><\/a> because it didn\u2019t 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]<\/a> It wasn\u2019t 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]<\/a> 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.<\/p>\n It wasn\u2019t until the Rome Statute (adopted in 1998 and enforced in 2002) created the International Criminal Court (\u201cICC\u201d) and laid out eleven crimes that a treaty specifically enumerated \u201ccrimes against humanity.\u201d[35]<\/a>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]<\/a>Because the ICC is a criminal court with jurisdiction to prosecute individuals, not states, all of those cases were against individuals.[37]<\/sup><\/a><\/p>\n 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]<\/a><\/p>\n 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.<\/p>\n The United States played an important role both in bringing the Genocide Convention into being and then weakening its power. Despite Lemkin\u2019s advocacy from Washington D.C., US delegates having a strong hand in drafting the convention and President Truman\u2019s 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]<\/sup><\/a><\/p>\n In a Pulitzer Prize winning work, A Problem from Hell: America and the Age of Genocide, <\/em>Samantha Power concludes after deeply studying US responses to genocides in Cambodia, Iraq, Bosnia, Rwanda, Srebrenica, and Kosovo, that \u201cthis country\u2019s 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\u2026. No US President has ever made genocide prevention a priority, and no US President has ever suffered politically for its indifference to its occurrence.\u201d[40]<\/sup><\/a><\/p>\n 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\u2019s book, Eyes off the Prize <\/em>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]<\/a><\/p>\n One of the first accusations of genocide submitted to the UN in 1945 was We Charge Genocide <\/em>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]<\/sup><\/a> \u00a0As Anderson\u2019s 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]<\/a> When the US finally ratified the Genocide Convention, in 1986, it made a \u201creservation\u201d 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]<\/a><\/p>\n 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]<\/a> \u00a0It took the ICJ fourteen years to decide the Srebrenica case, and this was after the conflict was over.[46]<\/sup><\/a><\/p>\n 2. Will we see more international human rights protection of groups and populations under attack in the coming years?<\/strong><\/p>\n Situating the history of the Genocide Convention in today\u2019s 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\u2019s authoritarian trends require more legal protection for groups, (2) that protection can be strengthened by learning from Lemkin\u2019s original intent, and (3) the jurisprudence at the ICJ demonstrates a closer fealty to Lemkin\u2019s intent, which may ultimately rescue the relevance of genocide law towards the protection of groups from destruction.<\/p>\n 2. A.Today\u2019s Authoritarian Trends Require More Legal Protections for Groups<\/em><\/p>\n 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.<\/p>\n In a sense, the Lauterpacht world view still holds\u2014by protecting individual rights, protection from threats based on group identity is already baked into the founding documents of human rights law. \u201cAll human beings are born free and equal in dignity and rights\u201d begins Article I of the Universal Declaration of Human Rights, while Article II declares everyone entitled to rights and freedoms \u201cwithout distinction\u201d of any kind.[47]<\/a> This means a person\u2019s group identity cannot be used to limit their human rights.<\/p>\n 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 <\/em>matter\u2014 the targeting of group members, not because of their individual identities but because of their group membership.<\/p>\n Lemkin understood, earlier than most, the catastrophic consequences of a populist ideology that was profoundly group-based, racist, and militant. He didn\u2019t 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.<\/p>\n Facing today\u2019s 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<\/em> experience of group identity profoundly shapes not just our individual power and our capacity to fight together, but can influence our motives. Today\u2019s 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.<\/p>\n 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:<\/p>\n 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 \u201cconquered the Desert,\u201d Brazil \u201coccupied the Amazon,\u201d Chile \u201cpacified the Araucan\u00eda,\u201d Denmark \u201cpromoted birth control in Greenland,\u201d Ethiopia \u201cfought terrorism in Tigray,\u201d France \u201ccolonized West Africa,\u201d and so on.[48]<\/sup><\/a><\/p>\n Dunkelberg concludes, however, that we now face \u201ca legal regime designed to hide genocides, and which is in dire need of rescuing so it can finally fulfill its original potential\u201d to legally prevent and punish the crime of genocide.[49]<\/sup><\/a><\/p>\n 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\u2014to actually prevent and punish the crime of genocide. An analysis of Lemkin\u2019s own words is helpful.<\/p>\n 2. B. Learning from Lemkin with respect to challenges to the Genocide Law<\/em><\/p>\n 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 \u201cthe crime of crimes\u201d 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\u2019t protect other groups who are under threat.<\/p>\n Reading Lemkin\u2019s work and commentaries around his work leads me to wonder how he would respond to those challenges today.<\/p>\n The specific intent threshold<\/em>: 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 \u201crepresent an elaborate, almost scientific system\u201d that need to be understood as \u201ca composite of different acts of persecution or destruction.\u201d[50]<\/sup><\/a><\/p>\n Philippe Sands writes about Lemkin\u2019s method of establishing genocidal intent amongst the Nazi leadership:<\/p>\n \u201cLemkin 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.\u201d[51]<\/sup><\/a><\/p>\n Consider this:\u00a0 What if Lemkin had access to today\u2019s livestreamed testimonies, verified video footage and multiple recorded declarations by authorities in the case of Gaza?\u00a0 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]<\/sup><\/a> 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]<\/sup><\/a> What if (perhaps with some pride) he read the Lemkin Institute for Genocide Prevention\u2019s statement on why we call the Israeli attack on Gaza Genocide<\/em>, which documents how both Hamas and Israel have demonstrated genocidal intent and the latter had begun a genocide[54]<\/sup><\/a>?; 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]<\/sup><\/a> 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.<\/p>\n Co-existing intents: <\/em>\u00a0Scholar A. Dirk Moses, author of The Problems of Genocide: Permanent Security and the Language of Transgression[56]<\/strong><\/sup><\/a><\/em> argues that the Holocaust was distinctive because of the nature of the oppression and the victim. \u00a0In a piece titled \u201cWhy the International Community Made it So Difficult to Prosecute the Crime of Genocide\u201d, [57]<\/a><\/sup> he quotes a powerful essay by Deborah Lipstadt who wrote of the Holocaust: \u201cJews 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]<\/sup><\/a><\/p>\n Moses\u2019 conclusion is that because the Holocaust was the original sin, genocide is exclusively viewed by international law as \u201ca massive hate crime against innocent victims\u2014meaning they were not involved in military conflict, and were not killed by military necessity\u2014the Holocaust shaped the ideal victim type.\u201d \u00a0Moses 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:<\/p>\n The grotesque nature of the law of genocide, however, is that victim numbers are irrelevant. All that counts is intent.\u00a0If 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]<\/sup><\/a><\/p>\n I don\u2019t 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:<\/p>\n 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\u2026. 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.\u201d[60]<\/sup><\/a><\/p>\n 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.<\/p>\n The Crime of Crimes: <\/em>Reading about Lemkin\u2019s 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:<\/p>\n \u201cLemkin who, in his tussle with the rival notions of human rights and crimes against humanity in the late 1940s, insisted that genocide is the \u2018most heinous of all crimes. It is the crime of crimes.\u2019 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]<\/sup><\/a><\/p>\n The \u201ccrime of crimes\u201d 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<\/em> between individual and groups. \u00a0He 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]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n Inter-group tensions: <\/em>It is conceivable that genocide law could result in exacerbating inter-group tensions by pitting groups against each other, but I\u2019m 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 \u201cgenocide\u201d, 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\u2014no state has ever been punished for a genocide under the Convention.[64]<\/a> Lemkin would have wanted it to be used more as a legal tool, not less.<\/p>\n Missing groups: <\/em>Finally, as populist authoritarians increasingly build support by oppressing or even physically removing groups who \u201cdon\u2019t belong:\u201d 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<\/em> believe that Lemkin supported the application of genocide beyond national, racial, ethnical or religious groups. Across his tome, Axis Rule<\/em>, 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]<\/sup><\/a> \u00a0His genocide chapter focusses exclusively on national groups and Jews. \u00a0Nazi 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.<\/p>\n 2. C. Current jurisprudence on intent at the ICJ<\/em><\/p>\n How relevant will any of this history be in the thinking of the International Court of Justice today? \u00a0Reviewing 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\u2019s original intent?<\/p>\n The ICJ faces a pivotal moment in its history and its relevance\u2014it 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]<\/sup><\/a> and other major human rights organizations[67] <\/sup><\/a>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]<\/sup><\/a> (The Rome Statue empowers the ICC to prosecute individuals for both crimes against humanity and genocide).[69]<\/sup><\/a><\/p>\n 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.<\/p>\n The major ICJ cases to address the issue of genocidal intent in this century are Bosnia v. Serbia<\/em> (2007)[70]<\/sup><\/a>and Croatia v. Serbia<\/em> (2015).[71]<\/sup><\/a> Bosnia v. Serbia<\/em> considered whether Serbia committed genocide as a state, <\/em>against Bosnian Muslims. While the ICJ helpfully held that a state could<\/em> 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<\/em> been met.[72]<\/sup><\/a><\/p>\n Importantly, however, it clarified the jurisprudence as follows:<\/p>\n The dolus specialis<\/em>, 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<\/em>. [73]<\/a><\/sup> (emphasis added)<\/p>\n In Croatia v. Serbia<\/em> (2015) the court helpfully clarified that the Bosnia v. Serbia<\/em> Judgment \u201caccepted the possibility of genocidal intent being established indirectly by inference.\u201d And \u201cthe notion of reasonableness must necessarily be regarded as implicit in the reasoning of the Court.[74]<\/sup><\/a>\u201d<\/p>\n 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. \u00a0That ruling not only drove Amnesty International\u2019s research in its recent report, but it is also at the heart of key state interventions in the current cases on Myanmar and Gaza.<\/p>\n Under the ICJ\u2019s 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]<\/a><\/p>\n Since South Africa brought its case against Israel[76]<\/sup><\/a>, and the ICJ ordered Israel to take provisional measures[77]<\/sup><\/a> to prevent genocide,[78]<\/sup><\/a> incitement to genocide,[79]<\/sup><\/a> and to report on its progress in so doing[80]<\/sup><\/a>Israel objected and asserted it rights to defend itself and to secure the release of the hostages.[81]<\/sup><\/a><\/p>\n Twelve parties have sought to intervene in the ICJ case (Nicaragua,[82]<\/sup><\/a> Colombia,[83]<\/sup><\/a> Libya,[84]<\/sup><\/a> Mexico,[85] <\/sup><\/a>Palestine,[86]<\/sup><\/a> Spain,[87]<\/sup><\/a> Turkey,