Genocide at The Hague: A Transitional Justice Reckoning?

[Dr Jeremie M. Bracka is an international human rights law scholar and transitional justice expert at RMIT University’s School of Law (Melbourne). He previously worked at the International Criminal Tribunal for Rwanda and is the author of Transitional Justice for Israel/Palestine? (Springer, 2022)]

The International Court of Justice (ICJ) is witnessing a striking rise in genocide litigation, as global armed conflicts find their way to The Hague. On 19 September 2025, Brazil submitted its formal intervention in South Africa’s case against Israel, a move that further amplifies the Court’s growing role in adjudicating claims under the 1948 Genocide Convention.

In less than two decades, the ICJ has intervened in at least five major cases: Bosnia and Herzegovina v Serbia and Montenegro (2007), Ukraine v Russia (2022), The Gambia v Myanmar (2020), and South Africa v Israel (2024). The ICJ also assessed claims in Croatia v Serbia (2015), and more recently in Sudan v United Arab Emirates (2024) and Nicaragua v Germany (2024) .

As political struggles and proxy conflicts are reframed through the lens of genocide law, provisional measures have become a vital tool for legal redress. Their value lies not only in circumventing paralysis at the UN Security Council, but also in responding swiftly to the risk of irreparable harm to vulnerable populations. On the one hand, this trend underscores the Genocide Convention’s enduring relevance. On the other, it reveals the fragility of enforcement, where a low plausibility threshold for interim relief collides with chronic non-compliance with its binding orders.

While transitional justice (TJ) traditionally centers on truth commissions and international criminal tribunals targeting individuals,  the ICJ’s focus on state and collective responsibility also deserves scrutiny. This piece critically examines how genocide litigation before the ICJ aligns with yet also falls short of TJ’s core goals of truth-telling, acknowledgment, and accountability. Genocide is notoriously difficult to prove, and the ICJ was never designed to adjudicate armed conflict in real time or regulate the conduct of war. As a court of law, it can resolve inter-state legal disputes, but it cannot end conflict itself. While the Court is increasingly performing TJ-like functions, its effectiveness is constrained both by its institutional design and by the limits of genocide law as a legal frame for addressing mass atrocity.

1. Transitional Justice at the ICJ

Despite its growing role in high-stakes atrocity litigation, the ICJ remains notably underexamined within transitional justice literature. This might be attributed to the field’s move away from top-down legalism and its critique of overly formalised, state-centric mechanisms. Nevertheless, in recent years, there has also been an “accountability turn” in international human rights fact-finding, particularly through United Nations bodies. Commissions of Inquiry and Fact-Finding Missions are increasingly tasked not only with documenting abuses but also with identifying perpetrators and laying the groundwork for future prosecutions.

Against this backdrop, ICJ proceedings in genocide cases have begun to take on TJ-relevant functions: investigating state crimes, acknowledging the suffering of victims, attributing responsibility to government actors, countering revisionist narratives, and contributing to the historical record. These are core transitional justice goals, even if pursued through a less conventional, inter-state legal pathway.

2 Truth-Telling and Symbolic Justice

Trials can powerfully communicate moral condemnation, even before a final ruling. The ICJ has not yet ruled on the merits of genocide in any of the recent cases, but its provisional measures have carried considerable symbolic weight. When the ICJ issued provisional orders in The Gambia v Myanmar, Rohingya activists celebrated the decision as long-overdue recognition. South Africa’s case against Israel was similarly lauded by the Palestinian Foreign Minister, who declared the Court had “ruled in favour of humanity and international law.” In Ukraine v Russia, President Zelenskyy called the ICJ decision a complete legal victory.

These responses highlight the expressive value of international courts, reinforcing the idea that legal action can vindicate the suffering of victims and shift narratives. Indeed, some scholars see the proliferation of ICJ genocide cases as transformative for global governance. But symbolism is not always substance.

3. Genocide as a Narrow Legal Frame

The focus on genocide may obscure more holistic understandings of mass atrocity and transitional justice. Genocide requires proof of specific intent to destroy a protected group, a near-impossible threshold in most modern conflicts. As the ICJ reiterated in Croatia v Serbia (2015), genocidal intent must be “the only inference that could reasonably be drawn” from the conduct. This sets an exceedingly high bar and seems ill-suited to comprehensive truth-telling and accountability. These limitations are particularly acute before the ICJ, whose jurisdiction excludes non-state actors and narrows the scope of legal inquiry. In this regard, the ICJ’s capacity for fact-finding is also hampered. In its only confirmed finding of a Genocide Convention violation, Srebrenica, the Court relied entirely on factual determinations by the ICTY, conducting no independent inquiry of its own.

The Court’s conservative approach to evidence and intent further constrains its capacity to support TJ, particularly once proceedings move beyond provisional measures to the far more exacting threshold required at the merits stage. For example, despite success at the provisional measures stage in The Gambia v Myanmar, The Gambia faces immense hurdles in proving that Myanmar’s 2016–2017 atrocities against the Rohingya met that legal standard. Myanmar has already signaled its defense will rely on alternate explanations, just as Israel has in response to South Africa’s case. Importantly, the Genocide Convention was never designed to regulate wartime conduct. Its drafters expressly excluded wartime civilian losses from its scope, noting: “heavy losses… in the course of operations of war… belong to the field of the regulation of the conditions of war and not to that of genocide.”

Genocide prosecutions also risk distorting our frame: violent crises do not need to be labelled “genocide” to deserve legal and political attention. As former Israeli Supreme Court President Aharon Barak persuasively stated in South Africa v Israel, “[t]he appropriate legal framework for analysing the situation in Gaza is International Humanitarian Law (IHL), and not the Genocide Convention.” Arguably, IHL offers a more realistic legal tool for evaluating military action, weighing proportionality and distinction, without requiring proof of an intent to destroy a group in whole or in part. Tellingly, the International Criminal Court (ICC) has jurisdiction over Gaza and Ukraine but has not issued genocide indictments in either context. That silence is notable.

4. Accountability Without Compliance?

The authority of the ICJ as a tool of TJ rests on its ability to influence state behaviour—yet recent genocide cases reveal a troubling pattern of non-compliance. In Bosnia v Serbia, the Court found Serbia failed to comply with the Provisional Measures Order of 8 April 1993. More recently, Matei Alexianu’s analysis of state practice concluded that there was no meaningful compliance in either Ukraine v Russia nor The Gambia v Myanmar.

However, this does not mean that provisional measures are ineffectual. Even when not implemented, ICJ orders can have significant legal and political consequences. In Ukraine v Russia, the ICJ’s ruling arguably helped consolidate the normative and legal consensus condemning Russian aggression, lending greater legitimacy to punitive measures adopted by states and regional bodies such as the European Union.

It is worth recalling that even symbolic measures can matter: ICJ orders may serve as legal signals or forms of diplomatic pressure. For example, the Court’s intervention in The Gambia v Myanmar may have had a chilling effect, reminding Myanmar of its obligations under the Genocide Convention. Indeed, the ICJ explicitly directed Myanmar to take “all measures within its power” to prevent genocide, which marked a rare expression of urgency and international scrutiny at that stage. However, this proved short-lived. Since the 2021 military coup, the plight of the Rohingya has only worsened, underscoring the limits of provisional measures in delivering meaningful protection on the ground.

South Africa v Israel exposes similar challenges. Israel partially complied with the ICJ’s Order of 26 January 2024 by submitting a report on its efforts to prevent genocide. However, the report remains confidential, and the Court lacks mechanisms to independently verify its accuracy. In the days following the order, heavy bombardment of Gaza continued, casting doubt on whether the measures were even heeded at all. More broadly, the ICJ operates under a legal framework where provisional measures require only a low plausibility threshold, while final judgments often demand evidence approaching proof beyond reasonable doubt. This procedural asymmetry may frustrate victims and advocates, particularly when interim relief is seen to lack enforcement power or tangible effect on the ground.

While some view the global expansion of accountability mechanisms as a deterrent, others caution against inflated expectations. Philip Alston argues that the rush to declare genocide and prosecute individuals, risks “atrocitizing” human rights, narrowing the focus to only the most extreme violations and sidelining broader structural reforms. From this perspective, the current accountability turn may reinforce legalism at the expense of justice: privileging prosecutions over truth-telling, redress, or deeper societal transformation.

5.  Moral and Political Blind Spots

The ICJ has increasingly become a venue for genocide litigation initiated by non-injured third-party states. The Gambia v Myanmar and South Africa v Israel exemplify this turn, reflecting a growing reliance on the erga omnes nature of genocide obligations, under which all states have a legal interest in enforcement. While this shift signals a principled commitment to universal justice, it also opens the door to geopolitical weaponisation. The Gambia filed its case with backing from the Organisation of Islamic Cooperation, and South Africa’s petition has been interpreted by some observers as aligning with its broader orientation toward Iran and Hamas.

Of course, international criminal law and TJ have always existed in a political world. But the risk is that the ICJ becomes a stage for proxy legal battles, where the pursuit of justice is inseparable from strategic state interests and geopolitical alignments. For example, as Jacobs observes, key Western actors supporting Ukraine’s case against Russia, like Germany and the US have been notably less vocal about Gaza at the ICJ. In contrast, while South Africa and Nicaragua have played visible roles in the Gaza litigation, their engagement with Ukraine’s case has been muted, neither appears to have intervened formally. Such inconsistencies reinforce the perception that legal accountability is applied selectively along political lines. The ICJ is not the UN General Assembly: its authority rests on sober application of international law, not on amplifying political blocs.

Another structural limitation is the Court’s exclusive jurisdiction over state conduct. This is particularly stark in contexts where non-state actors play a central role. In the Gaza proceedings, only Israeli actions fall within the scope of judicial scrutiny; the ICJ has no jurisdiction to examine or attribute responsibility for the mass atrocities committed by Hamas on 7 October 2023. While the Court acknowledged the plight of the hostages in its initial provisional measures, it made no reference to Hamas’s broader conduct, reflecting its jurisdictional limits in cases involving only state parties. Similar asymmetries arise elsewhere. In Myanmar, ARSA (the Arakan Rohingya Salvation Army) has been accused of serious IHL violations yet only the state’s conduct is before the ICJ. In Ukraine v Russia, there is evidence of potential abuses by Ukrainian forces, yet only Russian conduct is on trial.

From a transitional justice perspective, the ICJ’s asymmetrical focus risks undermining the legitimacy of its interventions. Legal processes that address only one party’s violations may fuel denialism, entrench impunity, and erode public trust. While legal institutions must operate within jurisdictional constraints, meaningful truth-telling and durable reconciliation require confronting the full spectrum of atrocities across all parties to a conflict.

6. When Justice Crowds Out Justice

In the field of TJ, it is often said that “some justice is better than none.” But when international legal strategies dominate the field of response to atrocity, we must ask: what is the opportunity cost? Genocide litigation at the ICJ, while symbolically powerful, can divert political and institutional energy toward legal outcomes at the expense of parallel efforts like truth-telling, reparations, or victim participation that are central to broader transitional justice goals. In Ukraine, for example, over 9,000 people are currently reported missing since the full-scale war began. Yet relatively little international attention has been paid to establishing a regional mechanism for the disappeared, despite such models existing in Latin America and the Balkans.

In Israel-Palestine, too, there are pressing transitional justice needs. What’s needed is not only legal determination but truth-telling for both Israelis and Palestinians alike, intra-Palestinian reconciliation, and restorative practices capable of responding to structural harm. Court proceedings alone, especially those framed around genocide, risk bypassing these more grounded forms of justice. This concern is not hypothetical. As Ukraine and Gaza illustrate, international accountability efforts have not stopped widespread suffering on the ground. Legal proceedings may take years, while bombs continue to fall. Moreover, a narrow focus on genocide may obscure opportunities for meaningful collective redress, including reparations, memorialisation, and the acknowledgment of complicity by nefarious non-state powers.

Conclusion: Justice Beyond Genocide

We should not need to litigate every crisis as genocide to warrant an international response. The ICJ rulings might carry weight, but they are no substitute for the broader goals that TJ seeks to achieve from meaningful truth-telling, redress to structural reform. Yet the ICJ, by design, remains institutionally and epistemically constrained. Its proceedings are driven by state actors, the evidence shaped by legal teams, and the remedy directed toward governments, not victims.

Unlike truth commissions or even the ICC’s limited victim participation regime, the ICJ offers no clear avenue for victims to testify, to be heard, or to see their suffering publicly acknowledged on their own terms. For many Palestinians, the Court’s provisional orders have already fallen short in this regard. Similarly, research among Rohingya survivors identifies a significant mismatch between institutional legal expectations and survivor priorities. Many expressed confusion or detachment from formal international legal mechanisms and their remedies. This is not simply a procedural shortcoming; it reflects a deeper challenge of epistemic justice: whose voices count, and which narratives are authorised in legal forums like the ICJ. When mass atrocities are refracted solely through the narrow lens of genocide law, lived experiences of displacement, structural violence, and historical trauma risk being instrumentalised. At the same time, the term ‘genocide’ holds symbolic resonance for some affected communities, offering a powerful language through which to name harm and demand international recognition.

This piece has argued that while the turn to genocide litigation at the ICJ is legally significant, it remains ill-equipped to deliver the fuller dimensions of justice demanded by conflicts in Myanmar, Ukraine, or Gaza. Without broader truth-telling, reparations, or hybrid mechanisms that engage survivors directly, ICJ cases risk being rhetorically powerful but substantively incomplete. For transitional justice to take root, the law must also be used in ways that centre survivors and connect with thicker efforts toward recognition, redress, and repair. When forums like the ICJ are stretched beyond their design or politicised, they risk obscuring the very harms they seek to address.