LEGAL AND MILITARY IMPLICATIONS
Summary
The ICJ’s jurisdiction under the Genocide Convention is increasingly being invoked in the context of armed conflicts. Five genocide cases have been lodged in the past four years—with more likely in the pipeline. What is novel about these cases is that the ICJ is being asked to make complex factual findings on criminal liability – a task the Court was not established to fulfil.
The definition of genocide under the Genocide Convention requires proof of an intention to commit genocide (known as dolus specialis). To date, the Court has set a very high standard: while such intention may be “deduced or inferred from certain types of conduct”, the intention to destroy a group in whole or in part, as such, must be “the only reasonable inference”.
The current case of The Gambia vs Myanmar may be a watershed. The judgment is due late October. Several NATO member states – United Kingdom, France, Germany, Netherlands, Denmark and Canada – are urging the Court to substitute strict textual interpretation with an expansive, “holistic” framework that effectively lowers the threshold for proving intent to commit genocide.
This approach dilutes the rigorous legal standard of dolus specialis – and urges the Court to apply that diluted standard to draw conclusions based on UN-produced evidence. A majority of the Court’s judges may adopt that approach.
Adopting the “holistic” approach will set a very dangerous precedent for cases that will be decided subsequently, such as the South Africa vs Israel and Nicaragua vs Germany cases.
It threatens to severely compromise the conduct of legitimate, lawful military operations by NATO and other Western states —particularly those directed against non-state terrorist actors who systematically engage in hybrid warfare, exploiting civilians as human shields, and operating outside the bounds of international law. This will degrade the integrity of the Court and of the Genocide Convention itself.
The Court is currently preparing its Myanmar judgment—expected late October 2026. Time is of the essence. To prevent the Court setting a precedent that permanently degrades Western military operational capabilities and destabilizes established treaty law, intervenor states must act immediately to implement a unilateral withdrawal accompanied by a clear public statement.
