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Genocidal intent

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aliasesdolus specialis

3 min read

Summary

The specific intent (dolus specialis) to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, which distinguishes Genocide from other crimes: in South Africa v. Israel (Genocide Convention) South Africa argues it from the pattern of Israel’s conduct in Gaza and from explicit statements by Israeli leaders, officials and soldiers (Verbatim record CR 2024/1 — Public sitting of 11 January 2024, oral argument of South Africa (South Africa v. Israel), PDF p.30, p.31-42).

Details

  • At the provisional-measures stage, Adila Hassim argues the Article II acts “form a calculated pattern of conduct by Israel, indicating a genocidal intent”, in six elements: targeting Palestinians in Gaza, weaponry causing large-scale destruction and sniping of civilians, designating safe zones then bombing them, depriving basic needs, destroying social infrastructure, and killing, injuring and orphaning large numbers of children (PDF p.30).

  • Tembeka Ngcukaitobi argues the Court need not at this stage find genocidal intent the only inference, and presents intent from conduct, from leaders’ explicit declarations — including Benjamin Netanyahu’s Amalek invocation and Yoav Gallant’s siege statement — repeated by soldiers on the ground, and from unpunished public incitement (PDF p.31-40).

  • Max du Plessis argues a motive or effort to destroy Hamas does not preclude genocidal intent towards the whole or part of the Palestinian people in Gaza, on Jelisić, Popović and Krstić, and that the concurrence of other crimes does not exclude the plausible inference of genocidal intent (PDF p.52).

  • Israel’s answer on 12 January 2024 is that intent must be assessed even at the prima facie stage, that acts can only be capable of falling within the Convention if intent is present, and that Israel’s targeting restrictions, forewarning and aid facilitation demonstrate the opposite of genocidal intent; government intent is to be read from War Cabinet and Ministerial Committee decisions and IDF directives, not from quotes outside that policy, including the fuller Amalek statement (Verbatim record CR 2024/2 — Public sitting of 12 January 2024, oral argument of Israel (South Africa v. Israel), PDF p.29-35).

  • In her dissent from the Order, Judge Julia Sebutinde holds South Africa did not demonstrate even prima facie that Israel’s acts were committed with the necessary genocidal intent, so they are not capable of falling within the Convention and the rights asserted are not plausible; she accepts Israel’s negating factors (targeted attacks, warnings, aid facilitation) and reads the officials’ statements in full context as referring to Hamas (Dissenting opinion of Judge Sebutinde, Order of 26 January 2024, South Africa v. Israel, PDF p.8-11).

  • In his separate opinion, Judge ad hoc Aharon Barak likewise holds some proof of intent is necessary even provisionally and that none sufficient for plausibility was shown, contrasting the fact-finding record in The Gambia v. Myanmar with the agency statements and officials’ statements the Court used here, and pointing to Israel’s alleviation measures and officials’ clarifications as showing the opposite intent (Separate opinion of Judge ad hoc Barak, Order of 26 January 2024, South Africa v. Israel, PDF p.7-12).

Genocide, Genocide Convention, Verbatim record CR 2024/1 — Public sitting of 11 January 2024, oral argument of South Africa (South Africa v. Israel), South Africa v. Israel (Genocide Convention), Tembeka Ngcukaitobi, Dissenting opinion of Judge Sebutinde, Order of 26 January 2024, South Africa v. Israel, Separate opinion of Judge ad hoc Barak, Order of 26 January 2024, South Africa v. Israel

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