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28. Violations of IHL occurring in the context of the armed conflict, must be investigated and prosecuted by the competent Israeli authorities.
VI. Lack of intent
29. Central to the crime of genocide is the element of intent, namely the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group as such. International courts have been reluctant to establish such intent and characterize atrocities as genocide. The International Criminal Tribunal for Rwanda (ICTR) was established primarily to prosecute the crime of genocide. Nonetheless, it set a high threshold for proving the specific intent required for genocide. In its very first case, the Akayesu case, the ICTR described the required specific intent as a “psychological relationship between the physical result and the mental state of the perpetrator” which “demands that the perpetrator clearly seeks to produce the act charged”[1]. This high bar explains some of the full or partial acquittals at the ICTR[2]. An analogous bar was also adopted by the International Criminal Tribunal for Yugoslavia.
30. The Court, with regard to State responsibility, has similarly adopted a restrictive approach in cases involving genocide on the merits. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Court concluded that—save in the case of Srebrenica—the widespread and serious atrocities committed in Bosnia and Herzegovina were not carried out with the specific intent to destroy, in part, the Bosnian Muslim group (Judgment, I.C.J. Reports 2007 (I), p. 194, para. 370). Some years later, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the Court found that the required intent was lacking altogether and therefore dismissed Croatia’s claims in their entirety (Judgment, I.C.J. Reports 2015 (I), p. 154, para. 524).
31. I accept that the proof of intent required at this preliminary stage is different from the one required at the merits stage. It is not necessary, at this stage, to convincingly show the mens rea of genocide by reference to particular circumstances, or for a pattern of conduct to be such that it could only point to the existence of such intent[3]. However, some proof of intent is necessary. At the very least, sufficient proof to make a claim of genocide plausible.
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32. I strongly disagree with the Court’s approach regarding plausibility and, in particular, I disagree on the question of intent.
33. The Court may indicate provisional measures “only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 18, para. 43). In the present case, the
- ↑ ICTR-96-4-T, Trial Chamber Judgment, 2 September 1998, para. 518.
- ↑ Of the 75 defendants whose trials were concluded before the ICTR, 14 were acquitted of all charges and several others were acquitted of genocide charges, often due to the difficulty of proving the required specific intent. See, e.g., ICTR-99-50-A, Appeal Judgement, 4 February 2013, para. 91; ICTR-99-52-A, Appeal Judgment, 28 November 2007, para. 912.
- ↑ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 67, para. 148.
