Ann Arbor (Informed Comment) – Ireland has filed a declaration with the International Court of Justice of its intention to intervene in South Africa’s genocide case against Israel for its tactics in the war on Gaza. So reports Kerry O’Shea at IrishCentral.
The Statute of the International Court of Justice, Article 63, provides for the notification of all member states about procedures regarding conventions that might affect them, and that “every state so notified has the right to intervene in the proceedings.” In this case, the relevant document is the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.
The Irish intervention addresses the difficulty of proving that officials of a state have deliberately set themselves a goal of wiping out another people in whole or in part. It says, “Ireland respectfully submits that 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. The crime may also be committed where a perpetrator – regardless of his or her purpose – knows (or should know) that the natural and probable consequence of these acts is either to destroy or contribute to the destruction of the protected group, in whole or part, as such, and proceeds regardless.”
That is, if a reasonable person can foresee that dropping 500-lb. bombs on residential apartment complexes, destroying water pipes, destroying most of the hospitals, and making people move from one tent camp to another once they were rendered homeless, would have a genocidal effect, and nevertheless committed these acts, the person is guilty of genocide even if there isn’t a smoking gun document of intent.
Ireland’s document concludes, “It is evident from the drafting history of the Convention that the term intent is not limited to the purpose of the perpetrator, but can also comprehend knowledge of the foreseeable consequence of the act committed.”
It is sort of like if a person kept shooting a gun in the general direction of a crowd of people, and ends up killing someone, the shooter would be guilty of murder even if there was no specific intent to kill that individual, because a reasonable person could foresee that shooting the gun repeatedly in the direction of a crowd would eventually result in a death.
Ireland’s Declaration of Intervention also tackles the difficulty that genocides often take place in the context of war-fighting, so that it is difficult to determine whether what appear to be genocidal acts are simply “collateral damage,” the unfortunate civilian deaths that inadvertently attend any battle.
The Declaration quotes the ICJ itself on one way to resolve this condundrum: “The Court restated this test where it said that ‘for a pattern of conduct, that is to SllJJ, a consistent series of acts carried out over a specific period of time, to be accepted as evidence of genocidal intent, it would have to be such that it could only point to the existence of such intent, that is to say, that it can only reasonably be understood as reflecting that intent [ … ]’
This can be characterised as the ‘only reasonable inference’ test.”
Photo by Roman Boed,
from PxHere.
Ireland points out that in the real world, actions can be taken for more than one purpose. That is, a country may kill large numbers of civilians while fighting a war both because that country is fighting a war and because it wants to destroy a group in whole or in part. The mere fact of war-fighting cannot be invoked to rule out genocidal intent.
The Declaration says, “Ireland submits that, in order to avoid the possibility of genocide being excluded in most, if not all, cases of anned conflict the application of the ‘only reasonable inference’ test clarifies that a pattern of conduct can only be fully explained as intended to destroy – at least in part – the protected group. In applying the test, Ireland respectfully submits that it is not necessary that the acts concerned should be exclusively intended to destroy the group but could also be committed with the intent of achieving one or more other objectives.”
The Irish cabinet made the decision to intervene at a cabinet meeting in early December. Deputy Prime Minister (Tánaiste and Minister for Foreign Affairs) Micheál Martin said then that:
- “There has been a collective punishment of the Palestinian people through the intent and impact of military actions of Israel in Gaza, leaving 44,000 dead and millions of civilians displaced.
“By legally intervening in South Africa’s case, Ireland will be asking the ICJ to broaden its interpretation of what constitutes the commission of genocide by a State.
“We are concerned that a very narrow interpretation of what constitutes genocide leads to a culture of impunity in which the protection of civilians is minimised.
“Ireland’s view of the Convention is broader and prioritises the protection of civilian life – as a committed supporter of the Convention, the government will promote that interpretation in its intervention in this case.”
He added on another occasion, “Fundamentally, Ireland is asking the court to broaden its interpretation of genocide within the Genocide Convention.”
Although the center-right Irish government has made it clear that it stands with South Africa in charging Israel with genocide in Gaza, the ICJ rules on such interventions give Ireland the position of adding to the deliberations. Article 82 of the Rules of the Court provide for signatories intervening in cases to engage in the “identification of the particular provisions of the convention the construction of which it considers to be in question” and to submit a list of documents in support of a case.
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