Genocidal Intent in Armed Conflict: Unpacking the ICJ’s “Only Reasonable Inference” Standard

[Natasha Yvonne Barigye is an International Justice Fellow at Amnesty International and a lawyer specialising in international criminal law.

Melissa Hendrickse is a Legal Advisor at Amnesty International, specialising in racial justice and international criminal law. 

Vito Todeschini is a Legal Advisor at Amnesty International, where he advises on international humanitarian law, international criminal law and international human rights law.]

Introduction

In the last few years, a number of cases have been brought before the International Court of Justice (ICJ) focusing on the application and interpretation of the Genocide Convention in armed conflict (Myanmar, Ukraine, Gaza and Sudan). Among the pending cases, The Gambia v. Myanmar and South Africa v. Israel present an important opportunity for the ICJ to clarify its previous jurisprudence, developed in Bosnia v. Serbia and Croatia v. Serbia, on genocidal intent and how to prove it. In fact, the test employed by the ICJ to infer genocidal intent from a pattern of conduct – the “only reasonable inference” standard – has generated much debate among scholars (e.g., Zivkovic; Behrens), leading to different, at times opposite, interpretations of what is required under this test to prove the existence of such specific intent.

In December 2024, Amnesty International published a report which concluded that Israel has committed genocide against Palestinians in the context of its military offensive on Gaza, which started on 7 October 2023 and continues at the time of writing. The report offers an analysis and interpretation of the ICJ jurisprudence, making two specific legal points: 1) genocidal intent may coexist with military goals in armed conflict situations; and 2) the “only reasonable inference” standard does not require genocidal intent to be the exclusive intent to be inferred from a pattern of conduct.

This blog post elaborates on these points, showing that they are widely supported among scholars and states. It also highlights the importance of such a legal discussion: in fact, adopting one interpretation of the ICJ jurisprudence over the other directly impacts the ability to hold states accountable under the Genocide Convention, particularly in situations of armed conflict.

Genocidal Intent and the “Only Reasonable Inference” Standard

Under Article II of the Genocide Convention, “genocide means any of the [listed] acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. So-called specific or genocidal intent (also known as dolus specialis) is the distinguishing element of genocide. Proving specific intent, however, is notoriously challenging given the rare occurrence of overt manifestations of it, including in the form of a plan or policy. For this reason, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) have routinely resorted to inferring its existence from a range of factors and circumstances, including circumstantial evidence (Akayesu, para. 523; Jelisić, para. 47). 

Following this approach, the ICJ has paid particular attention to patterns of conduct. In its view, given that the object of genocidal intent is the total or partial destruction of a protected group, “it is difficult to establish such intent on the basis of isolated acts”; thus, the ICJ requires “evidence of acts on a scale that establishes an intent not only to target certain individuals because of their membership to a particular group, but also to destroy the group itself in whole or in part”, which translates into proving that a pattern of conduct exists (Croatia v. Serbia, paras. 139 and 148). 

With reference to the standard for inferring genocidal intent from a pattern of conduct, in Bosnia v. Serbia the ICJ held that “for a pattern of conduct to be accepted as evidence of … existence [of specific intent], it would have to be such that it could only point to the existence of such intent” (para. 373). Later, in Croatia v. Serbia, it clarified that “in order to infer the existence of [specific intent] from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question” (para. 148). 

The fact that the ICJ did not elaborate any further on the meaning and application of the “only reasonable inference” standard has led to some misinterpretations of it. In particular, some scholars construe this standard as requiring proof that genocidal intent be the only intent a perpetrator harbours (Talmon). It follows that the existence of additional goals, such as military ones in armed conflict contexts, would automatically exclude genocidal intent as the “only reasonable inference” which can be drawn from a pattern of conduct.

In its report, Amnesty International refuted this interpretation as both incompatible with the Genocide Convention and a misreading of the “only reasonable inference” standard itself (pp. 101-105). First, scholars have pointed out that the above interpretation conflates a matter of substance with an evidentiary standard (Dill; Vasiliev). Indeed, the coexistence of genocidal intent and additional motives, or goals when referring to state intent, has to do with the definition of genocide, which is a substantive matter. The “only reasonable inference” standard, instead, constitutes a method of evaluation of indirect evidence. 

With regard to the definition of genocide, the above interpretation even fails to recall that international jurisprudence has consistently acknowledged that genocidal intent can coexist with additional motives (Tams, Berster and Schiffbauer, p. 162). The ICTY has explained that “[t]he personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide” (Jelisić, para. 49; see also ICTR Niyitegeka, paras. 51-53). With respect to state intent, the ICJ reaffirmed that “[t]he specific intent is also to be distinguished from other reasons or motives the perpetrator may have” (Bosnia v. Serbia, para. 189). And in his separate opinion in the ICJ Croatia v. Serbia case, Judge Bhandari also stated that “genocidal intent may exist simultaneously with other, ulterior motives” (para. 50, emphasis in the original).

The latter point is particularly relevant to situations of armed conflict, where a state will invariably pursue specific military goals. If the existence of such goals automatically precluded an assessment of genocidal intent, then the prohibition on genocide in armed conflict would be meaningless – countering the very letter of Article I of the Genocide Convention, which expressly prohibits genocide “in time of war”. Instead, the correct – and logical – reading is that a state’s conduct may serve both the goal of achieving certain military results and the specific intent to destroy a protected group as such (Akayesu, para. 127); genocide may even be the means for achieving such military results (Judge Cançado Trindade, para. 144; Daniele, Perugini and Albanese, p. 33). As noted by Adil Haque, this clearly emerges from the ICTY and ICJ jurisprudence concerning the genocide committed in Srebrenica, where it was shown that “[g]enocidal intent coexisted with […] other intentions, and genocide was committed in parallel with and as a means of pursuing other aims”. 

Moreover, the interpretation of the “only reasonable inference” standard as requiring genocidal intent to be the sole or exclusive intent basically misunderstands what this standard requires. In fact, a textual analysis of the quoted passages from the ICJ’s jurisprudence shows that the object of the inference is the “existence” of genocidal intent (Bosnia v. Serbia, para. 373; Croatia v. Serbia, para. 148; see also Tolimir, para. 745). In other words, the available evidence must convincingly demonstrate that the “only inference” which can “reasonably” be drawn from a pattern of conduct is that genocidal intent exists as part of the intent underlying the conduct of a state. The ICJ – or the international criminal tribunals, for that matter (e.g. Karera, para. 534) – never stated that such an inferential operation should prove genocidal intent to be exclusive, meaning that additional goals must not be present for the “only reasonable inference” standard to be met.

Instead, applying this standard means “filter[ing] out inferences that are not reasonable” and considering only “alternative explanations that have been found to be reasonably supported by the evidence” (Six States intervention, para. 52; Spain intervention, para. 25). Thus, “[a] balanced consideration of the interplay between motives and intent should determine whether motives ‘preclude such a specific intent’ to destroy a people, or whether they are consistent with, or even confirm, genocidal intent as the only reasonable inference” (UN Special Rapporteur OPT, para. 53(a)). It follows that “if the pattern of conduct can be fully explained by a non-genocidal intent, then the standard of proof is not satisfied. But if the pattern of conduct can be fully explained only by a combination of genocidal intent and non-genocidal intent, then the standard of proof is satisfied” (Haque).

Amnesty International’s reading of the “only reasonable inference” standard is not only widely held among scholars (e.g. Gurmendi; Vasiliev; Shaw; Lieblich; Anderson; Dill and Dannenbaum, p. 673) but also, as discussed below, increasingly being expressed by states.

States’ Positions 

In proceedings before the ICJ, several states (the Democratic Republic of the Congo (DRC), Belgium and Ireland in The Gambia v. Myanmar; and Chile, Ireland and Belize in South Africa v. Israel) clarified their views on genocidal intent and the “only reasonable inference” standard.

The DRC submitted that “perpetrators of genocide can pursue a plurality of objectives and that genocidal intent must not be exclusive or even primary” (para. 75), including in the context of armed conflict (para. 38). Rather, “[t]he essential thing is to determine that this intention can be established; this condition is necessary and sufficient within the meaning of Article II of the Convention” (para. 35). When it comes to inferring intent from a pattern of conduct, in turn, the DRC affirmed that:

73. […] the decisive element in the assessment of the facts is the reasonableness of the inference and […] the mere existence of another potential interpretation does not automatically render the inference of genocidal intent unreasonable; 

75. […] if the evidence available leads the judges to believe that genocidal intent exists, this conclusion must be considered “the only one that can reasonably be inferred from the acts in question” (unofficial translation from French).

Belgium illustrated a number of scenarios where the existence of military objectives cannot preclude a finding of genocidal intent (para. 25). First, where the military objective is the actual destruction of the group, meaning it “coincides with genocidal intent”. Second, where genocide serves as “an interim goal of [a military] campaign”, i.e. where genocide is a means to an end. Third, where military objectives are not the sole plausible explanation for a pattern of conduct:

25. […] to rule out genocidal intent, the alleged military objective cannot merely be one of several possible explanations for the belligerent’s conduct, coexisting with the intent to destroy, in whole or in part, a protected group as such. It must be the sole explanation for this conduct, based on the evidence available (unofficial translation from French).

In addition, Belgium reiterated the distinction between intent and motives, submitting that “when a belligerent invokes military considerations, the latter cannot preclude genocidal intent if they in fact constitute the motives underlying its conduct” (para. 27).

In its own turn, Ireland argued that the presence of multiple intents or motives does not preclude a finding of genocidal intent. With reference to the “only reasonable inference” standard, it explained:

36. That the pattern of conduct could only point to the existence of such intent is not to say that it could point to such intent only. […] it is perfectly possible that a pattern of conduct, upon examination, could point to two separate intentions, only one of which is genocidal. […] The co-existence of two or more intents does not rule out, exclude or displace either intent (emphasis in the original).

Ireland rejected the notion that genocidal intent must be exclusive: “it is not necessary that the acts concerned should be exclusively intended to destroy the group but could also be committed with the intent of achieving one or more other objectives”, including military ones in armed conflict situations (paras. 37-38).

Chile reiterated the possible coexistence of genocidal intent and other motives:

33. […] the Genocide Convention does not require that the intent to destroy a group (in whole or in part) be the sole or primary purpose of the perpetrator. Genocide’s special intent must be distinguished from the reasons or motivations which may have caused the accused to act. Indeed, members of a protected group could be targeted for their nationality, ethnicity, race, and/or religion, in addition to other reasons. Therefore, evidence of further motives —personal, political, or linked to military advantage— will not preclude a finding of genocide if such special intent is otherwise established. 

Similarly, Belize affirmed that: 

58. There is no requirement that the State or individual act exclusively with genocidal intent. It is the case that “genocidal intent may exist simultaneously with other, ulterior motives”, such as achieving military objectives, including defeating the enemy in the context of an armed conflict”. 

While not all the above submissions clearly distinguish between the substantive definition of genocide and the evidentiary standard to prove genocidal intent, they reflect a shared understanding: (i) genocidal intent may coexist with other motives or goals; and (ii) the “only reasonable inference” standard does not require genocidal intent to be the sole intent. Rather, the only reasonable inference to be drawn from a pattern of conduct must be that genocidal intent exists, including alongside other intents or goals.

Concluding Observations 

The genocides alleged in both The Gambia v. Myanmar and South Africa v. Israel have taken place in the context of ongoing armed conflicts, with one of the states accused of genocide (Israel) arguing that the commission of underlying acts of genocide against the protected group is an inevitable consequence of modern warfare, rather than the state’s intent to destroy that group as such. In oral hearings before the ICJ, Israel has indeed argued that “[t]he inevitable fatalities and human suffering of any conflict is not of itself a ‘pattern of conduct’ that plausibly shows genocidal intent” (p. 57, para. 11). 

However, as Judge Cançado Trindade cautioned in his dissenting opinion in Croatia v. Serbia, “perpetrators of genocide will almost always allege that they were in an armed conflict, and that their actions were taken ‘pursuant to an ongoing military conflict’” (para. 144; see also UN Special Rapporteur OPT, paras. 55 ff). William Schabas has also recalled that “[g]oing back to the Ottoman genocide of the Armenians in the First World War or to the Nazi genocide of the Jews in the Second World War, both of these, and others, were carried out in the context of a war,” adding that “almost every recognized case of genocide involved perpetrators who claimed to be fighting in self-defence”. 

It is clear from the very letter of Article I of the Genocide Convention that the mere characterization of a situation as one of armed conflict cannot preclude the possibility of genocide. The interventions by states discussed above also reveal a shared normative conviction that the intent to destroy a group as such cannot, and should not, be allowed to be excused or obscured by the “fog of war”. Should the ICJ’s “only reasonable inference” standard be interpreted as precluding the co-existence of genocidal intent with military goals, it will effectively be doing just that – foreclosing possibilities for justice and accountability when states pursue the destruction of a protected group alongside or as a means to fulfil their military goals. As Amnesty International’s report concludes, “it is critical to recognize genocide when it occurs in the context of armed conflict, and to insist that war can never excuse it” (p. 36).