By Andrew Tucker
According to Prof Steve E Zipperstein of UNCLA, the International Court of Justice is poised to broadly expand the definition of the intent requirement in the genocide convention beyond all recognition, quite frankly. And the American government is very, very deeply concerned that if the definition is broadened in that way, given American activity overseas given America’s strikes on Iran in June of 2025 and in February-March of 2026, that the United States itself could face an allegation that it committed genocide. Maybe even the errant strike on the girls’ school in Iran, maybe that will be the basis of a case. And so the United States is in this current administration is very, very anxious to ensure that the Genocide Convention is not distorted beyond all recognition, twisted into a pretzel, if you will, so that it can be weaponized and used against the United States of America.
I think this is very, very bad from the standpoint of jurisprudence, from the standpoint of the appropriate role of judges. If people are not happy with the definition of genocide set forth in Article Two of the Genocide Convention of 1948, then the answer is not to rewrite the convention sitting as a court in judgment. The answer is to renegotiate the genocide convention and to amend it. And that’s a political decision to be made by the signatures to the genocide convention, not a judicial decision to be made by judges.
The Genocide Convention of 1948 was well understood at the time to apply to only those situations in which the perpetrators of the crime acted with the intent, that intent being the only reasonable inference that could be drawn from all the facts and circumstances.
The Myanmar decision is being used to reinterpret the convention with a view to the Israel case in the future. One of the lawyers driving the Myanmar case is also the same lawyer driving the South Africa case: Navi Pillay. Clearly the strategy was to tee up the Gambia to go after Myanmar to push for a rewrite, if you will, of the definition of intent – so that then that rewrite could be weaponized and used against Israel in the South Africa case.
Unfortunately, the ICJ now has a 22-year track record going back to the opinion of July 2004 regarding the legality of the wall of separation of bending over backwards to rule against Israel in every single case and then making up the reasons afterward. And I expect nothing different in the decision to be handed down next week.
