Category: Zoom In

The new wave of genocide cases before the International Court of Justice (ICJ), and particularly litigation in the Gazan Genocide case, raised questions and controversies as to the proper role of the Court in adjudicating claims arising from ongoing armed con-flicts and complex political situations, and the role of the Genocide Convention as a ba-sis for such claims. This contribution challenges the idea that resort to the Genocide Convention, even if influenced by limits on the Court’s jurisdiction, raises principled objections, as opposed to questions of fact and law for the Court’s determination. It ar-gues that the recent cases emerge from, and build on, the ICJ’s longstanding and diverse engagement in situations of armed conflict, and especially the broader reinvigoration of ICJ judicial activity of the past five years. The paper further rebuts concerns regard-ing the role of the Court in politically contentious contexts, such as ongoing armed con-flicts. Finally, it contextualises the ‘strategic’ use of the Genocide Convention and the Court within the longstanding practice of strategic litigation in international adjudica-tion, and reflects on role of the Court and its significance.

According to the ICJ in Bosnia v Serbia and Croatia v Serbia, the specific intent on the part of a State required for that State’s responsibility for breach of its obligation not to commit genocide is furnished by the specific intent of any person individually respon-sible for the crime of genocide whose conduct is attributable to the State in that in-stance. This approach reflects an application of the customary international rules on attribution of conduct not only to the person’s bare act but also to the mental state with which it is committed. But while certainly one way of looking at it, the Court’s reason-ing does not reflect what is arguably the intuition that the intent of a State as a juridical person corresponds to the intent of the competent, central decision-making organ or organs of that State. This article reflects on the ICJ’s approach and considers an alterna-tive whereby a State’s genocidal intent would be sought instead solely on the part of the competent, central decision-making organ or organs of that State.