Declaration of intervention of Ireland

INTERNATIONAL COURT OF JUSTICE
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)
DECLARATION OF INTERVENTION BY IRELAND
pursuant to Article 63 of the
Statute of the International Court of Justice
20 December 2024
To the Registrar, International Court of Justice
1. On behalf of the Government of Ireland, I have the honour to submit to the International Court of Justice (‘the Court’) the following Declaration of Intervention pursuant to Article 63, paragraph 2, of the Statute of the Court (‘the Statute’) in the Case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).
2. Article 82, paragraph 2, of the Rules of the Court provides that a declaration of a State’s desire to avail itself of the right of intervention conferred upon it by Article 63 of the Statute shall specify the case and the convention to which it relates and shall contain:
a) ‘particulars of the basis on which the declarant State considers itself a party to the convention;
b) identification of the particular provisions of the convention the construction of which it considers to be in question;
c) a statement of the construction of those provisions for which it contends;
d) a list of documents in support, which documents shall be attached.’
3. These matters are addressed in sequence below.
CASE AND CONVENTION TO WHICH THIS DECLARATION RELATES
4. On 11 November 2019, the Republic of The Gambia (‘The Gambia’) instituted proceedings against the Republic of the Union of Myanmar (‘Myanmar’) before the Court under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘the Convention’), to which both The Gambia and Myanmar are Contracting Parties. In its Application instituting proceedings (the ‘Application’), which was accompanied by a Request to the Court for the indication of provisional measures, The Gambia alleges that Myanmar has violated the Convention through ‘acts adopted, taken and condoned by [it] … against members of the Rohingya group, a distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State. These acts, which include killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures
to prevent births, and forcible transfers, are genocidal in character because they are intended to destroy the Rohingya group in whole or in part.’1 Specifically, The Gambia alleges that:
‘from around October 2016 the Myanmar military (the ‘Tatmadaw’) and other
Myanmar security forces began widespread and systematic ‘clearance operations’ - the term that Myanmar itself uses - against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of ‘clearance operations’ on a more massive and wider geographical scale.’2
5. On 23 January 2020, in response to the Request of The Gambia for the indication of provisional measures, the Court made an Order indicating the following provisional measures:
‘(1) … The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to the members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group;
1 Application of The Gambia dated 11 November 2019, § 2
2 Ibid, § 6
(2) … The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;
(3) … The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide;
(4) … The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.’3
6. On 24 January 2020, pursuant to Article 63(1) of the Statute, the Registrar notified Ireland, as a Contracting Party to the Convention, that The Gambia ‘seeks to found the
Court’s jurisdiction on the compromissory clause contained in Article IX of the 1948 Convention … and alleges that the Respondent has violated Articles I, III, IV, V and VI of the Convention’ and that it ‘therefore appears that the construction of this instrument will be in question in the case.’4
7. On 20 January 2021, Myanmar raised preliminary objections to the jurisdiction of the Court and the admissibility of the Application. On 20 April 2021, The Gambia filed a written statement of its observations and submissions on the preliminary objections raised by Myanmar.
8. On 22 July 2022, the Court by Order rejected the preliminary objections raised by Myanmar and found that that it had jurisdiction, on the basis of Article IX of the Convention, to entertain the Application and that the Application was admissible.
3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 3, § 86
4 Letter of Registrar attached at Annex A hereto.
9. The prohibition of genocide is a peremptory norm of general international law. Ireland recalls that the Court has described this and other such peremptory norms as obligations necessary ‘to protect essential humanitarian values,’5 which values each Contracting Party has a common interest in protecting and observing.6 Ireland further recalls that the Court has recognised ‘the rights and obligations enshrined by the Convention [as] rights and obligations erga omnes.’7 Given the essential function of the prohibition of genocide in ensuring the interests of humanity and the erga omnes nature of the rights and obligations of States enshrined by the Convention, Ireland, as a Contracting Party, has a direct interest in the construction that may be placed by the Court on the relevant provisions of the Convention and wishes to see the consistent interpretation, application and fulfilment of the Convention among all Contracting Parties. In view of this, Ireland has decided to avail itself of the right conferred upon it by Article 63, paragraph 2 of the Statute to intervene in the present proceedings.
10. In intervening in these proceedings Ireland acknowledges that it is ‘limited to submitting observations on the construction of the convention in question and does not … become a party to the proceedings, [nor is it permitted] to deal with any other aspect of the case before the Court [and that] such an intervention cannot affect the equality of the Parties to the dispute.’8
PARTICULARS OF THE BASIS ON WHICH IRELAND
CONSIDERS ITSELF A PARTY TO THE CONVENTION
11. In accordance with Article XI, paragraph 4 of the Convention, Ireland deposited its instrument of accession thereto with the Secretary-General of the United Nations on 22
5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (the ‘Bosnia Judgment’), § 147.
6 Barcelona Traction (Merits) [1970] ICJ Rep (I) p.3, §§ 33-35; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep (I) p.422, §§ 68-69; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Order on Request for the Indication of Provisional Measures) [2020] ICJ Rep 3, § 41
7 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), §. 31
8 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, p. 3, at p. 9, §. 18.
June 1976.9 In accordance with Article XIII of the Convention, the accession of Ireland became effective on 20 September 1976.
PROVISIONS OF THE CONVENTION THE CONSTRUCTION
OF WHICH APPEARS TO BE IN QUESTION
12. In its Application to the Court, The Gambia asserts that Myanmar ‘is responsible for violations of its obligations under the Genocide Convention, including Articles I, III, IV, V and VI’.10 Specifically, it alleges that in these proceedings:
‘Violations of the Genocide Convention include, but are not limited to:
 committing genocide in violation of Article III (a);
 conspiracy to commit genocide in violation of Article III (b);
 direct and public incitement to commit genocide in violation of Article III (c);
 attempting to commit genocide in violation of Article III (d);
 complicity in genocide in violation of Article III (e);
 failing to prevent genocide in violation of Article I;
 failing to punish genocide in violation of Articles I, IV and VI; and
 failing to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide or of any of the acts enumerated in Article III, in violation of Article V.’11
13. Accordingly, Ireland considers that Articles I, III, IV, V and VI of the Convention are in question and, in so far as the interpretation of these provisions may turn on the construction of Article II of the Convention, Ireland considers that this provision is also in question in the present proceedings.
9 Copy of Notification by Director of the General Legal Division of the Office of Legal Affairs, United Nations Secretariat, of Accession by Ireland attached at Annex B hereto
10 Application of The Gambia, § 111.
11 Ibid.
14. Below, Ireland sets out to the Court how, in its practice as a Contracting Party in the application of the Convention, and in light of the Convention’s object and purpose, it has construed Articles I, II and III of the Convention, the construction of which in these proceedings appears to be particularly relevant to the Court’s deliberations.
CONSTRUCTION OF ARTICLE I FOR WHICH IRELAND CONTENDS
15. Article I of the Convention provides:
‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’
16. Accordingly, Article I records the agreement of the Contracting Parties that genocide is a crime under international law and obliges them to prevent and punish it. While Article I does not expressly provide that Contracting Parties must not themselves commit genocide, it has always been Ireland’s view that Article I must necessarily be construed as so providing. This is also the construction placed on Article I by the Court itself, which found in its Bosnia Judgment, that:
‘Under Article I the States parties are bound to prevent such an act, which it describes as a ‘crime under international law’, from being committed. The Article does not expressis verbis require States to refrain from themselves committing genocide. However, in the view of the Court, taking into account the established purpose of the Convention, the effect of Article I is to prohibit States from themselves committing genocide. Such a prohibition follows, first, from the fact that the Article categorizes genocide as ‘a crime under international law’: by agreeing to such a categorization, the States parties must logically be undertaking not to commit the act so described. Secondly, it follows from the expressly stated obligation to prevent the commission of acts of genocide... It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control
that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.’12
17. It follows from the above that Article I addresses genocide both as a crime under international law entailing the criminal responsibility of an individual and as an internationally wrongful act entailing the responsibility of a State. This ‘duality of responsibility’ was recognised by the Court in the same Judgment.13 It is supported by an analysis of Article IX of the Convention, which clearly contemplates ‘the responsibility of a State for genocide or for any of the other acts enumerated in article III.’
18. Accordingly, Ireland has construed and applied Article I of the Convention as obliging Contracting Parties to prevent and punish commission of the crime of genocide and to themselves refrain from committing genocide. State responsibility under Article I will be engaged where the State has itself committed genocide or where it has failed to prevent its commission by persons acting on its behalf (whether ultra vires or not) or within its effective control.
19. Therefore, in Ireland’s view, the Convention should be considered not only as a criminal law instrument which obliges Contracting Parties to establish jurisdiction over, and punish commission of, the crime of genocide by individuals, but also as a human rights instrument which obliges them not to commit genocide as well as to prevent genocide against any national, ethnical, racial and religious group (a ‘protected group’) under their protection or within their power.
CONSTRUCTION OF ARTICLE II FOR WHICH IRELAND CONTENDS
20. Article II of the Genocide Convention provides:
12 Bosnia Judgment, § 166
13 Bosnia Judgment, § 163
‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.’
21. Article II defines the term ‘genocide’ for the purposes of the Convention. It follows that the obligations imposed on Contracting Parties by other provisions of the Convention concerning the prohibition, prevention and punishment of genocide must be understood and interpreted by reference to the meaning of the term defined in Article II.
Specific Intent and the Crime of Genocide
22. Ireland understands that what is defined by Article II is both the crime of genocide under international law and the internationally wrongful act of genocide, i.e. both a crime and a tort. It sets out both the material element of genocide and its mental element. Given the quite different regimes of, on the one hand, a crime under international law for which an individual may be held criminally responsible and, on the other, an internationally wrongful act entailing the international responsibility of a State, it is Ireland’s respectful submission that different approaches to establishing the necessary mental element are required depending on whether, in any given case, one is considering the responsibility of an individual or of a State.
23. Genocide as a crime under international law is a crime of specific intent, meaning that a perpetrator must both intend to commit the act which is the basis of the crime and intend to cause the prohibited result. As in many municipal criminal codes, an inference of specific intent can be drawn from reckless commission of the prohibited act where certain criteria are met.
24. The acts enumerated in Article II of the Convention, where committed with the necessary intent, constitute genocidal acts. For the purposes of the crime of genocide, they constitute the actus reus of that crime, or the material element of it. The mens rea, or mental element, of the crime requires that the material element be accompanied by a specific ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’ As the Court has noted:
‘It is not enough to establish, for instance in terms of paragraph (a), that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis; […] The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words ‘as such’ emphasize that intent to destroy the protected group.’14
25. Moreover, except in the most extreme of instances, an individual cannot realistically expect to destroy the protected group in whole or in part by his or her own actions. On that basis, the individual’s intent must in some way relate to a wider destructive campaign or effort which he or she understands those actions will facilitate or to which they will contribute.15
26. Ireland construes the mental element of the crime of genocide as being satisfied where the perpetrator has acted deliberately, in a manner designed to destroy, or contribute to the destruction of, the protected group in whole or in part as his or her purpose. Furthermore, in Ireland’s view, specific intent can also be inferred in any case where a reasonable person would have foreseen that the natural and probable consequence of the acts of the perpetrator was to so destroy or contribute to destruction, and the perpetrator was reckless as to whether those acts would do so. This is on the basis that the greater the probability of a consequence the more likely it is that it has been foreseen and, if foreseen, the greater the likelihood that it is also intended.
14 Bosnia Judgment, § 187
15 By analogy, see International Criminal Tribunal for the former Yugoslavia (‘the ICTY’), Prosecutor v. Brđanin, IT-99-36-T, Judgment, 1 September 2004, § 330; and Prosecutor v. Galic, IT-98-29-T, Judgment, 5 December 2003, § 741
27. Accordingly, Ireland respectfully submits that the perpetrator does not need to have, as his or her purpose, the commission of the crime of genocide when committing any one or more of the material elements of the crime. The crime may also be committed where a perpetrator – regardless of his or her purpose – knows or should know that the natural and probable consequence of these acts is either to destroy or contribute to the destruction of the protected group, in whole or part, as such, and proceeds regardless.
28. It is evident from the drafting history of the Convention that the term intent is not limited to the purpose of the perpetrator, but can also comprehend knowledge of the foreseeable consequence of the act committed. The formulation ‘with the purpose of’ was used in the first draft of the Convention16 but was substituted in later17 and final drafts18 by ‘with the intent to.’ During the negotiations a proposal was made to restore the term ‘purpose’ to the text but it was defeated by vote.19 Accordingly, Ireland has construed the term ‘intent’ in Article II of the Convention as not being limited to purpose but also encompassing knowledge of foreseeable consequence too.
29. This construction is also reflected in the case law of relevant international criminal tribunals that have tried persons on charges of genocide. For instance, on the question of specific intent (dolus specialis), the International Criminal Tribunal for Rwanda (‘ICTR’) in Akayesu found that an ‘offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group.’20
30. It merits observing that this construction also corresponds to the law regulating crimes of specific intent in Ireland and many other States.21
16 UN Doc. E/447, 6/26/47
17 UN Doc. E/AC.25/12, 5/19/48; UN Doc. E/794, 5/24/48
18 UN Doc. A/C.6/289,11/23/48
19 UN Doc. E/AC.25/SR.24, 5/12/48
20 ICTR Chamber I, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, § 520 - https://www.un.org/en/preventgenocide/rwanda/pdf/AKAYESU%20-%20JUDGEMENT.pdf
21 In Ireland for instance: The People (DPP) v. Douglas and Hayes, [1985] ILRM 28
State Responsibility
31. By definition, only States and other entities enjoying international legal personality may commit internationally wrongful acts. The international law of State responsibility is separate to – and different from – criminal law rules on commission and complicity. In Ireland’s view, establishing the international responsibility of a State for commission of, or complicity in, genocide by applying in identical fashion a legal definition formulated primarily for the purpose of establishing the criminal responsibility of an individual is not the appropriate approach. It is respectfully submitted that the consequence of such an approach could lead to State impunity for genocide and defeat the overall purpose of the Convention.
32. As submitted above, the crime of genocide is committed only where the perpetrator acts with the necessary specific intent. In the case of an internationally wrongful act of genocide, Ireland has construed the specific intent element of genocide as taking the form of a genocidal policy or plan, invariably demonstrated by reference to a pattern of widespread and systematic violence against the protected group. In Ireland’s view this means that in order to establish State responsibility for genocide it is not necessary to demonstrate that the State’s organs, or persons or entities empowered to exercise governmental authority, possessed specific intent in the criminal sense (and to the criminal standard). Rather, evidence of a policy, plan or campaign should be capable of being adduced in that broader context. Ireland submits that, in the absence of direct evidence of a policy or campaign, this element of the internationally wrongful act of genocide may be established by consideration of indirect or circumstantial evidence, including evidence of a general pattern of widespread and systematic acts directed at the protected group which leads to their destruction, in whole or part, from which it can be inferred that the said destruction was the intended result.
Only Reasonable Inference test
33. Absent direct evidence of a general policy, plan or campaign – which is rarely available22 – the specific intent element of the internationally wrongful act will have to be established by way of indirect or circumstantial evidence. The Court stated in the Bosnia Judgment that, where the Applicant in that case sought to convince it of the specific intent inspiring the actions of the Respondent State, that:
‘dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.’23
34. The Court restated this test where it said that ‘for a pattern of conduct, that is to say, a consistent series of acts carried out over a specific period of time, to be accepted as evidence of genocidal intent, it would have to be such that it could only point to the existence of such intent, that is to say, that it can only reasonably be understood as reflecting that intent […]’24
35. This can be characterised as the ‘only reasonable inference’ test.
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. The human mind can of course accommodate and act upon more than one intention and the same conduct can be intended to achieve two or more results, however attainable each may be. It follows that it is perfectly possible that a pattern of conduct, upon examination, could point to two separate intentions, only one of which is genocidal. This possibility was recognised by Judge Bhandari in his separate opinion in the Croatia case where, in warning against
22 As acknowledged by the parties in Croatia v. Serbia, Judgment, lCJ Reports 2015, §. 143, and by the ICTY in Prosecutor v. Tolimir, Case No. IT-05-88/2-T, Trial Chamber Judgment, 12 December 2012, §. 745.
23 Bosnia Judgment, § 373
24 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3 February 2015 (‘Croatia Judgment’), § 510
conflating punitive motive with genocidal intent, he noted that ‘genocidal intent may exist simultaneously with other, ulterior motives.’25 The co-existence of two or more intents does not rule out, exclude or displace either intent.
37. A clear example of this is where genocide is committed during the course of an armed conflict, where two reasonable inferences might be drawn from the conduct of the State concerned – both that it sought to defeat the enemy and that it intended to destroy a protected group in whole or part. This possibility was considered by Judge Cançado Trindade in the same case:
‘One cannot characterize a situation as one of armed conflict, so as to discard genocide. The two do not exclude each other. In this connection, it has been pertinently warned that perpetrators of genocide will almost always allege that they were in an armed conflict, and their actions were taken ‘pursuant to an ongoing military conflict’; yet, ‘genocide may be a means for achieving military objectives just as readily as military conflict may be a means for instigating a genocidal plan.’26
38. Ireland submits that, in order to avoid the possibility of genocide being excluded in most, if not all, cases of armed conflict the application of the ‘only reasonable inference’ test clarifies that a pattern of conduct can only be fully explained as intended to destroy - at least in part – the protected group. In applying the test, Ireland respectfully submits that 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.
39. With respect to the ‘fully conclusive standard’ of proof which the Court has developed in cases ‘involving charges of exceptional gravity’27, Ireland contends that a qualification to this standard ought to arise in cases involving allegations of serious violations of human rights by State organs and by persons or entities empowered to
25 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Separate Opinion of Judge Bandari, 3 February 2015, § 50 118-20150203-JUD-01-10-EN.pdf
26 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Dissenting Opinion of Judge Cançado Trindade, 3 February 2015, §. 144 - 118-20150203-JUD-01-05-EN.pdf
27 cf. Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 17
exercise governmental authority, not least because of the requirement underpinning this Convention to protect essential humanitarian values. In addition, such an approach would be consistent with customary law rules of attribution, as reflected in the International Law Commission’s 2001 draft Articles on Responsibility of States for Internationally Wrongful Acts (the ‘draft Articles’).28
40. Moreover, it is noteworthy that the draft Articles do not establish any separate or higher standard for the attribution to a State of conduct constituting a serious breach of an obligation arising under a peremptory norm of general international law. In fact, the legal consequences for the State concerned of responsibility for such a serious breach and for a mere internationally wrongful act are the same (i.e. cessation, non-repetition and reparation). A pattern of conduct from which genocidal intent may be inferred on the part of a State should be assessed having regard to the fundamental object and purpose of the Convention, namely the prevention and punishment of genocide. Ireland respectfully submits that the Court should be open to assessing breaches of the Convention on the balance of the evidence.
Pattern of Conduct
41. Instances of the acts enumerated in Article II (a)-(e), together with circumstantial evidence such as statements or incitement by State organs, or persons or entities empowered to exercise governmental authority, may form a pattern of conduct from which the existence of a general policy, plan or campaign may reasonably be inferred. Absent direct evidence of a general plan or campaign, the mere commission of one or more of the material acts enumerated in Article II cannot be regarded as genocidal unless indirect or circumstantial evidence of such a plan or campaign is adduced. It is submitted that the severity, intensity and foreseeable consequences of these acts may provide such evidence. Ireland offers the following observations on the nature of these acts:
 Killing members of the group
In its construction of the Convention, Ireland recognises that the killing of a large proportion of the protected group (or part thereof) will be a strong indicator of a
28 Chapter II, Articles 4-11
policy, plan or campaign. However, the killing of a smaller proportion does not necessarily reduce cause for concern if such killings have been carried out in combination with other material acts enumerated in Article II, directed against the protected group, on a scale, of a nature and to an extent that a reasonable inference can be drawn from them. In particular, the killing of members of the protected group, in combination with the maiming, starvation, impregnation and/or imposition of long-term psychological damage on other members of the group, in a systematic manner directed at that group, will be a clear factor in assessing the existence of a plan or campaign.
 Causing serious bodily or mental harm to members of the group
The Court has acknowledged that a wide range of different acts may cause serious mental or bodily harm within the meaning of Article II (b) and Ireland has construed this provision accordingly. In its Bosnia Judgment, the Court expressly held that the following acts, conducted systematically, were capable of satisfying the material elements of Article II (b): ‘[…]massive mistreatment, beatings, rape and torture causing serious bodily and mental harm […]’29
The Court noted in the same Judgment that there was no dispute between the Parties that rape and sexual violence could also constitute the material elements of genocide, where accompanied by the requisite specific intent.30 It recalled also that in the jurisprudence of the ICTR and the ICTY the language of Article II (b) of the Convention, as replicated in the Statutes of those Tribunals, was interpreted as encompassing a broad range of criminal acts.31
Additionally, the ICTY (in Prosecutor v. Karadzic) found that ‘while forcible transfer does not of itself constitute an act of genocide, depending on the circumstances of a given case, it may cause such serious bodily or mental harm as
29 Bosnia Judgment, § 319
30 Ibid, § 300.
31 Ibid, § 330
to constitute an act of genocide’ under the corresponding provision of the Statute of that tribunal.32
 Impact on victims
As regards the severity of the impact of these acts on victims, the Court, in its Bosnia Judgment, cited in full the relevant paragraph of the ICTR in Prosecutor v. Akayesu in which it stated that rape and sexual violence constitute particularly egregious acts for the purposes of Article II (b),33 while also noting the dicta of the ICTY in Prosecutor v. Stakic that:
‘Causing serious bodily and mental harm…is understood to mean, inter alia, acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death and harm that damages health or causes disfigurement or injury. The harm inflicted need not be permanent and irremediable.’34
In the context of the impact on victims subject to the offence of rape, in particular, the ICTR in Akeyesu found that:
These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.35
In its construction of Article II (b) both the Court and relevant international criminal tribunals have developed a broad approach to what may constitute a material act causing ‘serious bodily or mental harm.’ As set out above, in its Bosnia Judgment the Court construed Article II (b) to admit of a wide range of
32 ICTY Case No. IT-95-5/18-T, 24 March 2016, § 545
33 Bosnia Judgment, § 300, quoting Akayesu ICTR 96-4-T, Trial Chamber Judgment, 2 September 1998, §. 731
34 ICTY, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, §. 516
35 Prosecutor v. Akayesu, (Case No. ICTR-96-4-T), 2 September 1998, § 731
different acts, clarifying that they were capable of constituting the material element of genocide.
Ireland draws particular attention in any assessment of specific intent to the factor of intensity of attacks against a protected group as an indicator of genocidal intent or of a plan or policy. In the Galić case for instance, in a passage quoted with approval by the Court in the Bosnia Judgment36, the ICTY found that:
‘the attacks on civilians were numerous, but were not consistently so intense as to suggest an attempt by the SRK to wipe out or even deplete the civilian population through attrition . . . the only reasonable conclusion in light of the evidence in the Trial Record is that the primary purpose of the campaign was to instil in the civilian population a state of extreme fear’37
Another important factor in Ireland’s construction of Article II (b) is the severity of impact of the acts in question on different categories of the protected group, particularly on children and young adults. In this regard, the Court may consider the relative effect of these acts on more vulnerable victims, the impact of which is clearly considerably greater.
 Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
In respect of Article II (c) of the Convention, Ireland contends that the imposition of conditions of life calculated to bring about its physical destruction must also be construed and applied broadly. The Court has recognised Article II (c) as including ‘methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group.’38 In its Bosnia Judgment, the Court, while declining to reach a finding of genocide in that case, acknowledged that acts of encirclement, shelling and starvation could constitute material elements
36 § 328
37 Prosecutor v. Galić, IT-98-29-T, ICTY, Trial Chamber Judgment, 5 December 2003, §. 593
38 Croatia Judgment, § 161.
of genocide for the purposes of Article II (c).39 Again, the conditions of life imposed on the protected group, in whole or part, will have different impacts on different categories of group members, with vulnerable members such as children being more susceptible to adverse conditions, such as starvation.
 Foreseeability of the probable consequences of the conduct concerned
In Ireland’s view, when considering whether a pattern of conduct can provide indirect or circumstantial evidence of a genocidal plan or campaign, it is essential to assess whether the foreseeable and probable consequences of the conduct concerned will lead to the destruction of the protected group, in whole or in part. Where such destruction is the reasonably foreseeable result, it is a strong indicator of the existence of a genocidal plan or campaign, as will be the failure to stop or prevent the continuation of the conduct concerned. This is particularly the case where, in proceedings under the Convention, the Court has indicated provisional measures that the Respondent State subsequently fails to implement.
 Particular effects of conduct on children
In assessing whether a pattern of conduct may disclose a genocidal plan or campaign, Ireland respectfully submits that extra weight should be given to evidence of the effects of the material acts of genocide on children, and on the consequences of such acts for the long term viability of the protected group. This is especially important in the context of armed conflict where recent studies have concluded that children are up to seven times more likely to be killed by explosive weapons, and that hunger and malnutrition affects them much earlier and more severely.40
Where there is evidence that children of the protected group have been particularly targeted, or that the conduct targeting the group made no distinction between child
39 Bosnia Judgment, ICJ Reports 2007, § 324.
40 cf. for instance Guha Sapir et al (2018) ‘Patterns of civilian and child deaths due to war-related violence in Syria: a
comparative analysis from the Violation Documentation Center dataset, 2011–16’, The Lancet Global Health, Volume 6, ISSUE 1, and the 2024 Global Report on Food Crises (FSIN and Global Network against Food Crises, GRFC 2024. Rome - https://www.fsinplatform.org/grfc2024
and adult members of it, certain conclusions can be drawn. As children are essential to the continued existence of any human group, acts constituting the material elements of genocide directed at, or without making distinction for, child members of the group will have an obviously significantly greater impact on the resilience and ultimate survival of the group than the same acts directed at a similar or larger number of adult members. Moreover, the psychological effects of these acts on surviving children may greatly impair their capacity to contribute to the growth of the group in the future. It therefore follows that certain reasonable inferences can be drawn from acts directed against, or failing to distinguish, child members of the group.
 Public statements and discriminatory measures
Regular public statements made on behalf of State organs, or by persons or entities empowered to exercise governmental authority, that denigrate the protected group, as such, or that incite hatred or fear of it should, in Ireland’s view, be considered as forming a pattern of conduct from which reasonable inferences can be drawn for the purposes of the Convention.41 Likewise, measures that systematically discriminate against or persecute the group should also form part of a pattern of conduct to be assessed. In its construction of the Convention, Ireland has attached importance to the role a tolerant political environment plays in safeguarding the existence of any protected group within a wider society.
CONSTRUCTION OF ARTICLE III FOR WHICH IRELAND CONTENDS
42. Article III of the Genocide Convention provides:
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
41 ICTY, Prosecutor v. Brđanin, IT-99-36-T, Judgment, 1 September 2004, § 330
(e) Complicity in genocide.
43. As a Contracting party to the Convention, Ireland has construed Article III as establishing modes of both criminal and State responsibility. As regards criminal liability, Contracting Parties are obliged to create and punish the offence of genocide itself in domestic law, as well as conspiracy, incitement, attempt and complicity. Ireland has effected this by statute giving effect to the Convention.42 Moreover, Ireland acknowledges and supports the important distinction between commission of the complete offence of genocide and the inchoate offences enumerated in Article III (b)-(e). In particular, Ireland recalls the Court’s clear ruling in the Bosnia Judgment that commission of these inchoate offences does not require the commission of the complete offence of genocide:
‘On the other hand, there is no doubt that a finding by the Court that no acts that constitute genocide, within the meaning of Article II and Article III, paragraph (a), of the Convention, can be attributed to the Respondent will not free the Court from the obligation to determine whether the Respondent’s responsibility may nevertheless have been incurred through the attribution to it of the acts, or some of the acts, referred to in Article III, paragraphs (b) to (e). In particular, it is clear that acts of complicity in genocide can be attributed to a State to which no act of genocide could be attributed under the rules of State responsibility…’43
44. As regards State responsibility for the acts enumerated at paras (b)-(e) of Article III, the Court in the Bosnia Judgment clearly recognised these not simply as crimes but internationally wrongful acts for which the responsibility of a State may be entailed. In the Bosnia Judgment the Court did not make a finding of responsibility against the Respondent State, by reason of an insufficiency of evidence:
‘It has not been proved that organs of the FRY, or persons acting on the instructions or under the effective control of that State, committed acts that
42 Genocide Act 1973, s. 2
43 Bosnia Judgment, § 381
could be characterized as ‘[c]onspiracy to commit genocide’ (Art. III, para. (b)), or as ‘[d]irect and public incitement to commit genocide’ (Art. III, para. (c)), if one considers, as is appropriate, only the events in Srebrenica.’ 44
45. In that case, the Court considered evidence on the question of whether the relevant actors were organs of the Respondent government or persons acting on its instructions or under its effective control, but found it insufficient to establish State responsibility.45 Clearly, however, the case establishes that where sufficient evidence is available State responsibility may be engaged.
DOCUMENTS IN SUPPORT OF THE PRESENT DECLARATION
46. The following is a list of the documents submitted in support of this Declaration, which documents are attached hereto:
(a) Letter from the Registrar of the International Court of Justice to the Ambassador of Ireland to the Kingdom of the Netherlands, dated 24 January 2020; and
(b) Notification by the Director of the General Legal Division of the Office of Legal Affairs, United Nations Secretariat, of the Accession by Ireland to the Convention on the Prevention and Punishment of the Crime of Genocide, dated 9 July 1976.
CONCLUSION
47. On the basis of the foregoing, Ireland hereby avails itself of the right conferred upon it by Article 63, paragraph 2 of the Statute to intervene in the proceedings brought by The Gambia against Myanmar.
48. The Government of Ireland has appointed Mr. Declan Smyth, Legal Adviser at the
44 Bosnia Judgment, § 417
45 Bosnia Judgment, §s 416 et seq.

Annex A

Annex B