Measuring with Double Legal Standards

Over the past three months, the allegation that Israel may be committing acts of genocide in Gaza has been transformed from a rallying cry into a contentious case, accompanied by a request for the indication of provisional measures, before the International Court of Justice (ICJ). On 12 January 2024, the German Government released a press statement, announcing its intent to intervene as a third party under Article 63 of the Statute of the ICJ (ICJ Statute). Germany’s decision may not appear startling given that it had previously intervened in both genocide proceedings against Russia (Ukraine v Russia case) and Myanmar (Rohingya case). However, in the latter case, Germany joined Gambia in upholding a purposive construction of Article II Genocide Convention, which would seem to present a serious obstacle to support Israel. Thus, this contribution investigates whether Germany, in its intervention in the Genocide in the Gaza Strip case, would be able to abandon its previous submissions in the Rohingya case and instead adopt a more restrictive construction of the Article II Genocide Convention.

Germany’s Purposive Construction in the Rohingya case

At a press conference on 15 January 2024, a spokesperson for the Federal Foreign Office, in response to a query as to why Germany had dismissed South Africa’s claims without any prior assessment, stated that, the Foreign Office ‘cannot see [a genocidal] intent in Israel’s actions’. Therefore, it would appear reasonable to assume that the latter will argue in its intervention that Israel lacks genocidal intent. Given Germany’s submissions in its intervention in the Rohingya case, this may prove an arduous task.

In its intervention in the Rohingya case, Germany observed that the ICJ’s ‘standard of “the only inference that could reasonably be drawn” sets the bar unduly high’ [p. 12, para. 51]. Consequently, it proposed that the Court should ‘adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible’ [ibid].

Furthermore, Germany argued that the ‘[l]arge-scale killing of group members is the most obvious and immediate manifestation of an intention to destroy a group in whole or in part’ and that ‘other acts such as injuring […] members of the targeted group may also strongly evidence an intent’ [p. 13, para. 56]. In the same vein, South Africa took the view that ‘the vast number of civilians killed and injured’ clearly infers genocidal intent [p. 65, para. 103].

Germany also argued ‘that the targeting of children is relevant to the determination of specific intent’ [p. 16, para. 71]. Concerning the underlying acts of genocide, Germany held that ‘there is a lower threshold for “serious bodily or mental harm” when the victim is a child’ [p. 9, para. 40].

Moreover, Germany acknowledged a potential link between genocide and forced displacement, observing that ‘[a]lthough forced displacement of persons does not in and of itself amount to an enumerated underlying act of genocide, […] forced displacement may [nevertheless], depending on the facts, lead to the underlying acts of genocide’ [p. 10-1, para. 45].’ Germany also pointed out ‘that a violent military operation triggering the forced displacement of members of a targeted group may similarly contribute to evidence of a specific intent to destroy the protected group, regardless of whether the acts triggering the forced displacement fall within one of the five categories of underlying acts of genocide’ [p. 17, para. 74]. Similarly, South Africa argued that the forced displacements in Gaza should be considered genocidal [p. 39, para. 60].

When assessing whether there is specific intent, Germany further noted that UN reports ‘must be regarded as having particular probative value in establishing [a] specific intent’ [p. 17-8, para. 76]. In line with this, South Africa extensively referenced the reports and statements of the UN and its experts in its application, directly citing passages from these sources to support its claim that Israel has genocidal intent [p. 67-70, para. 108].

During the period from 7 October 2023 to 23 January 2024, at least 25,490 Palestinians were killed, and 63,354 Palestinians were injured in Gaza. As of 22 January 2024, Israel’s attacks have resulted in the deaths of 11,000 children. Since 7 October 2023, 1.9 million people, representing 85% of Gaza’s population, have been forcibly displaced [as discussed in relation to the evacuation order dated 13 October 2023] and are increasingly at risk of starvation due to the ongoing siege, which severely restricts access to humanitarian aid. Considering these facts and Germany’s submissions on the construction of Article II Genocide Convention, it appears virtually inconceivable that Germany would be able to intervene in the Genocide in the Gaza Strip case without returning to a stricter construction. This assumption is further supported by the fact that, as things stand, Germany’s submissions in the Rohingya case appear to either confirm or even strengthen South Africa’s position. Accordingly, the question becomes whether the ICJ would admit Germany’s intervention if the latter were to return to a more restrictive construction.

Returning to a More Restrictive Construction?

This situation has never occurred so far. However, the Court’s 1951 judgment in the Haya de la Torre (Colombia v. Peru) may provide some guidance on the matter. In that case, Cuba’s intervention was opposed by Peru, which argued that it was inadmissible because it sought to appeal an earlier judgment of the Court, namely the 1950 judgment on the Asylum case, involving the same parties and Cuba as an intervening third State. Consequently, the ICJ found that Cuba’s intervention was ‘devoted almost entirely to a discussion of questions which the [earlier judgment] had already decided with the authority of res judicata, and that, to that extent, it does not satisfy the conditions of a genuine intervention’ [p. 77]. However, the Court acknowledged that Cuba’s intervention could not be completely disregarded, as it included at least one ‘aspect which the Court had not been called on to consider in its [earlier judgment]’[ibid]. The ICJ, therefore, found Cuba’s intervention to be genuine and concluded that:

‘Reduced in this way, and operating within these limits, the intervention of the Government of Cuba conformed to the conditions of Article 63 of the Statute, and the Court […] decided […] to admit the intervention’ [ibid].’

In the cas d’espèce, the situation is slightly different insofar that the ICJ has not yet ruled on the merits of the Rohingya case. However, it should be borne in mind that the ICJ will have ruled on the merits of the latter case long before it decides on the Genocide in the Gaza Strip case. Assuming that the ICJ would adopt Germany’s purposive construction of Article II Genocide Convention in the Rohingya case, the latter would be precluded from reverting to a more restrictive construction in the Genocide in the Gaza Strip case, as the construction given by the Court’s judgment would be binding upon it with the force of res judicata under Article 63(2) ICJ Statute.

Based on this finding, it is appropriate to infer that an intervening State should also be bound by the construction given in a previous case, even before a judgment is delivered, to the extent that it can only raise new aspects in subsequent cases which the Court has not been asked to consider. This is supported by the fact that it takes the ICJ several years to rule on a case. In the absence of any such binding effect prior to the judgment, an intervening State would be free to shift its position and advance varying constructions each time the convention in question is subject to a case.

However, unlike the Haya de la Torre case and the Asylum case, the parties involved in the Rohingya case and the Genocide in the Gaza Strip case are not identical. This raises the question of whether a third-party State can construct the same provisions differently in a subsequent case where the parties are not the same.

Given the permissive nature and the low admissibility threshold of Article 63 ICJ Statute, allowing States to do so would inundate the ICJ with endless interventions, impeding the judicial process and thus running counter to the principles of sound administration of justice and procedural efficiency. Furthermore, this conduct undermines the very purpose of Article 63 ICJ Statute, which aims to ensure a consistent construction of the relevant convention rather than to assist the parties to a case. Such a misuse of Article 63 ICJ Statute could lead to a disregard of the principle of equality of the parties. In light of these issues and the resurrection of the procedural mechanism under Article 63 ICJ Statute with an unprecedented number of 33 intervening States in the Ukraine v Russia case, a cautious approach is warranted.

In conclusion, Germany should be held to its previous submissions in the Rohingya case and should not be permitted to return to a more restrictive construction in pari materia. Germany may, however, submit a construction to such aspects, which the ICJ has so far not been required to examine. Reduced in this way and operating within these limitations, it could still present a submission to the Court.

Limited Scope

Yet, submissions of third-party States cannot address the underlying facts of the dispute, nor can they address the question of how the provisions of the Genocide Convention should be applied to the facts of the case. That was recently confirmed by the ICJ in its Order of 5 June 2023 in the Ukraine v Russia case, clarifying that:

‘[T]o the extent that some declarations address other matters, such as the existence of dispute between the Parties, the evidence, the facts or the application of the Convention in the present case, the Court will not consider them.’ [p. 17, para. 83].

Therefore, Germany’s submission in the cas d’espèce cannot address the question of whether a specific intent can be inferred from Israel’s actions or not. Nor is it possible for Germany to make a factual distinction between the situation in Israel and that in Myanmar. The intervention must be narrowly confined to observations relating to the construction of the Genocide Convention’s provisions.

Concluding Remarks

Less than two hours after Israel had closed its pleadings, Germany announced its politically motivated intention to intervene as a third party in the case. Therefore, it can be assumed that Germany did not take sufficient time to conduct a comprehensive assessment prior to its decision. At all costs, it sought to be perceived as being on Israel’s side. This assumption is reinforced by the fact that 12 January 2024 also marks the 120th year since the start of the Herero and Nama uprising against German colonial rule in what is now Namibia, which was so brutally suppressed that it culminated in a gruesome genocide.

Attempting to delegitimise South Africa’s claims by accusing it of politicising and instrumentalising the Genocide Convention was perceived as a very disturbing way to announce an intervention, especially by States of the Global South. In fact, the Namibian Presidency expressed its ‘deep concern with the shocking decision’. Thus, Germany’s intervention in support of Israel seems to evoke memories of a time when the world was still judged by double standards, one for the coloniser and one for the colonised.

Regardless of whether Germany succeeds in its legal effort to support Israel in this case, the political repercussions of this intervention are already palpable.