Traversing the labyrinthine corridors of the Peace Palace, we confront the question of the elusive nature of genocidal intent in the case of South Africa v. Israel. Genocide, just like any other crime, requires the fulfilment of both its mens rea and actus rea elements. The actus rea of genocide encompasses the prohibited acts listed in Article II of the Genocide Convention of 1948 directed against any of the protected groups. Concurrently, Article II establishes the mens rea threshold of an “intent to destroy” a protected group “as such”. Although this has always been a “distinguishing character” of the crime, South Africa’s complaint against Israel has sparked renewed scrutiny into the concept and substantiation of genocidal intent (see here, here, here, or here). These legal proceedings present a unique opportunity to reconsider the threshold required for genocidal intent.
South Africa contends that Israel’s genocidal intent can be discerned from statements made by Israeli State and army officials, advisers, and spokespersons, and the nature and conduct of Israel’s military operation in Gaza. In contrast, Israel maintains that they are acting in self-defence and are actively working to minimize civilian casualties and facilitate humanitarian assistance to Gaza, which negates the alleged genocidal intent (see paras. 24, 38, 40 of the Provisional Measures Order).
While the Court was not required to decide on the concurrence of genocidal intent during the provisional measures stage (only on its plausibility, see The Gambia v. Myanmar, para. 56), South Africa may struggle to prove that genocidal intent is the only proper inference at the merits stage. This challenge arises due to the prevailing interpretation of genocidal-specific intent, known as “purpose-based”. This construction implies that genocidal intent is an “aggravated” form of intent (Cassese and Gaeta, p. 119) which goes beyond the ordinary concept of intent in international criminal law (Schabas, p. 257). This is the approach that has been followed by the ICTR and the ICTY (for an overview of their case law, see Ambos). Ultimately, this view has been upheld by the ICJ in the cases of Bosnia v. Serbia (paras. 186-189) and Croatia v. Serbia (paras. 132-148). In the words of the ICJ, targeting group members because they belong to that group or acting with mere “discriminatory intent” is not sufficient to fulfil the subjective requirement, as “something else is required” (Bosnia v. Serbia, para. 187). The ILC holds an identical view (p. 44).
My proposition contends that the current interpretation sets an unusually stringent threshold – one that, in my perspective, is no longer justifiable. I advocate for a re-evaluation of the matter, proposing that genocidal intent be construed as satisfied whenever the accused possesses knowledge or awareness that the campaign or attack in which they participate has the goal or effect of annihilating the group. In support of this stance, I present a key argument based on a protective conception of genocide, rooted in both international and criminal law methods of interpretation.
The Protective Interpretation from an International Law Perspective
Article 31(1) of the Vienna Convention on the Law of Treaties establishes that treaties shall be interpreted in accordance with the ordinary meaning to be given to the terms of the instrument and in the light of its object and purpose. The ordinary meaning of intent cannot be equated to a volitional or purpose-conditioned concept of dolus (dolus directus of first degree). This equivalence cannot be found in the (literal) interpretation of the term “intent” used in Anglo-Saxon jurisdictions, nor in the German (“absicht”) or Spanish (“intención”) context, and not even within Article 30(2) of the Rome Statute, which establishes and defines the general subjective requirements for the crimes within the jurisdiction of the ICC (with the mens rea specificities of genocide appearing in Article 6). Across these contexts, intent can encompass knowledge. Just to give an example, in the United Kingdom, the House of Lords, defined intention as “virtual certainty” regarding the consequence in R. v. Woollin.
Turning to the heart of this argument, the object and purpose of the Genocide Convention can be discerned by scrutinizing its drafting history. Lemkin’s seminal work, Axis Rule in Occupied Europe, reveals that the primary concern of the father of the Genocide Convention was the perils posed by the destruction of entire groups and nations – with less emphasis on the malign motivations behind genocidal acts. When the United Nations General Assembly addressed genocide for the first time, it also stressed the need to criminalize it to prevent “great losses to humanity in the form of cultural and other contributions” wrought by the “denial of the right of existence of entire human groups”. The initial draft of the Convention, crafted by the UN Secretariat, explicitly acknowledged that the purpose of the Convention was “to prevent the destruction of [enumerated] groups of human beings”. The core nature of this concern is reflected in the preamble of the Convention itself, which recognizes that “in all periods of history, genocide has inflicted great losses on humanity”. Consequently, the goal of the Genocide Convention (and genocide law more generally) is to protect the specified groups through the criminalization of their extermination. As the ICJ has recognized, the object of the Convention is safeguarding “the very existence of certain human groups” (Croatia v. Serbia, para. 139; Bosnia v. Serbia, para. 194).
Given this treaty goal, opting for the interpretation of the terms that provides greater protection to the groups becomes preferable. Based on this rationale, the ICJ has recognized two crucial principles. Firstly, when the method of literal interpretation leads to a meaning incongruent with the purpose or spirit of the instrument, “no reliance can be validly placed on it” (South West Africa Cases, 1962, p. 21). Secondly, the application of effectiveness-oriented or teleological rule of interpretation according to which “instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes” may be deemed valid within a reasonable process of interpretation (South West Africa Cases, 1966, para. 91).
The Protective Interpretation from a Criminal Law Perspective
From a criminal law standpoint, the mens rea interpretation of a crime should be grounded in its structure (see Gil Gil) and the rationale behind its criminalization (see Ambos). This consideration leads us to consider theories of criminalization and imputation (or normative attribution) to interpret the crime of genocide. In this field, two prominent theories exist. On the one hand, the Germanic Rechtsgut theory of protection of legal goods orients the interpretation of crimes according to the good that has been found worth legal protection (see Roxin, §2, mn. 7–12, 50). On the other, the Anglo-American harm principle, according to which criminal punishment can (and must) be exercised in order to prevent relevant harm to others (see Feinberg, pp. 190 ff.).
Respectively, the Rechtsgut doctrine would emphasize that the legal good being protected in the crime of genocide is the existence and belonging to a group, and the member’s physical integrity and life. In parallel, the harm being prevented is also the destruction of the group and the violation of the individual rights of its members. Out of this collective-individualistic approach, the group-based nature of genocide is the element that allows its criminalization at the international level, as it would breach a so-called international harm principle (see Larry May, pp. 80-95). Accordingly, the legal good is violated and the harm is materialized whenever the destruction of the group is being brought to reality, regardless of ambiguous characterizations of mens rea.
These doctrinal approaches are crucial for construing genocide, as they refer to the mens legis or the goal of the legislation (which may slightly diverge from the potentially biased mens legislatoris, namely the lawmaker’s intention). Crimes should be interpreted as safeguarding what they aim to protect, no more (risking overcriminalization) and no less (risking infraprotection). Taking into account the Rechtsgut and the harm principle, the criminalization of genocide prohibits the physical destruction of groups, not internal subjective aspects confined to the minds of the accused. It might seem intuitive to view purposive causation of harm as the highest degree of blameworthiness and objective endangerment of the protected interest. However, this is incorrect in the context of large-scale, systematic, state-promoted crimes, where a multiplicity of individuals may act with varying degrees of knowledge and intent.
Following this reasoning and considering the ontological structure of genocide, the specific wrongfulness of genocide resides its capacity to inflict a unique form of vast and extensive harm, and not in the dangerousness of the perpetrator’s depraved character (rendering Arendt’s banality of evil theory unusable). Mental states cannot be the object of regulation of any liberal (international) criminal law. The purpose-based approach has deteriorated to the point where some authors have equated “intent” with “motives”, going so far as to say that “the possibility does exist that one motive is so powerful that destructive intent cannot share a place at the same level” (Behrens, p. 522). In other words, the purpose-based approach leads to the untenable conclusion that volitional justifications can legitimize the objective destruction of a protected group. It is not defensible to claim that the mens rea requirements of a crime can render its protections essentially ineffective. In fact, the articulation of genocide as a dolus specialis crime serves to broaden its protective scope, by advancing the point of its commission to an earlier stage in time (resembling the structure of an attempt or an inchoate crime), as explained by Gil Gil (p. 130) and Stuckenberg (pp. 318-319).
Concluding Remarks
Based on the interpretative principles derived from both international and criminal law, I assert that a protective understanding of the concept of genocidal intent should be prioritized. In this context, a protective interpretation entails effectively proscribing the group’s destruction, irrespective of specific purposes, reasons, motives, or other volitional aspects present in the accused’s mind. The absence of a subjective, transcendent “purpose” in the perpetrator’s mind, extending beyond mere knowledge or awareness, should not compromise the groups’ entitlement to the safeguards offered by the Genocide Convention.
Consider now the case of Israel. It has been argued that Israel’s actions are justified by a multiplicity of tactical and strategic reasons, for example, military necessity with regards to Hamas, force protection, or deterrence. During the oral proceedings, Israel contended that it acted with the intention to defend itself to terminate the threats against it and to rescue the hostages (see para. 24 of the Provisional Measures Order of 26 January 2024). The relevance of these explanations, however, must be scrutinized against the backdrop of the evident destruction of the Palestinian population, broadcasted globally, as consequence of Israel’s actions.
Permitting states to provide “strategic intentions” for the destruction of protected groups is unconvincing and flawed. The mere awareness or knowledge of the outcomes of their actions should be sufficient to fulfil the mens rea requirement for genocide charges. Even if the members of the enumerated groups may be indirectly protected by war crimes and crimes against humanity, these core crimes fail to grasp the reason why certain groups are collectively attacked. By upholding a broader interpretation of genocidal intent — one that acknowledges the actual impact on targeted groups rather than volitional justifications — we can pave the way for a more protective international legal framework. Otherwise, are we “unintentionally” introducing a gap in accountability by insisting on upholding an intent concept tied to purpose?
The views expressed in this article are the author’s alone and do not represent any institutional affiliation.
