Declaration of intervention of Ireland

INTERNATIONAL COURT OF JUSTICE
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide in the Gaza Strip (South Africa v. Israel)
DECLARATION OF INTERVENTION BY IRELAND
pursuant to Article 63 of the
Statute of the International Court of Justice
6 January 2025
To the Registrar, International Court of Justice
1. On behalf of the Government ofireland, 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 in the Gaza Strip (South Africa v. Israel).
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 29 December 2023, the Republic of South Africa (' South Africa') instituted
proceedings against the State of Israel ('Israel') before the Court under the 1948
Convention on the Prevention and Punishment of the Crime of Genocide ('the
Convention'), to which both South Africa and Israel are Contracting Parties.
5. In its Application instituting proceedings (the 'Application'), which was accompanied
by a Request to the Court for the indication of provisional measures, South Africa
alleges that Israel has violated the Convention through 'acts threatened, adopted,
condoned, taken and being taken by the Government and military of the State of Israel
against the Palestinian people, a distinct national, racial and ethnical group, in the
wake of the attacks in Israel on 7 October 2023.,i Specifically, South Africa alleges
that:
'The acts in question include killing Palestinians in Gaza, causing them serious
bodily and mental harm, and inflicting on them conditions of life calculated to
bring about their physical destruction. The acts are all attributable to Israel,
which has failed to prevent genocide and is committing genocide in manifest
violation of the Genocide Convention, and which has also violated and is
continuing to violate its other fundamental obligations under the Genocide
Convention, including by failing to prevent or punish the direct and public
incitement to genocide by senior Israeli officials and others. '2
6. On 26 January 2024, in response to the Request of South Africa for the indication of
provisional measures, the Court made an Order indicating the following provisional
measures:
'(1) .. . The State of Israel shall, in accordance with its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide, in
relation to Palestinians in Gaza, 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; ...
(2) ... The State of Israel shall ensure with immediate effect that its military does
not commit any acts described in point 1 above; ...
1 Application of South Africa dated 29 December 2023, § l
2 Ibid, § I
(3) ... The State of Israel shall take all measures within its power to prevent and
punish the direct and public incitement to commit genocide in relation to
members of the Palestinian group in the Gaza Strip; ...
(4) ... The State of Lfrael shall take immediate and effective measures to enable
the provision of urgently needed basic services and humanitarian assistance to
address the adverse conditions of life faced by Palestinians in the Gaza Strip; ...
(5) ... The State of Israel shall take effective measures to prevent the destruction
and ensure the preservation of evidence related to allegations of acts within the
scope of Article JI and Article Ill of the Convention on the Prevention and
Punishment of the Crime of Genocide against members of the Palestinian group
in the Gaza Strip; ...
(6) ... The State of Israel shall submit a report to the Court on all measures
taken to give effect to this Order within one month as from the date of this
Order.'3
7. On 6 February 2024, pursuant to Article 63(1) of the Statute, the Registrar notified
Ireland, as a Contracting Party to the Convention, that South Africa 'seeks to found the
Court's jurisdiction on the compromissory clause contained in Article IX of the
Genocide Convention and alleges that the Respondent has violated Articles I, Ill IT~ 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
8. On 28 March 2024, the Court reaffirmed the provisional measures indicated in its Order
of 26 Januaiy 2024 and indicated further provisional measures. 5
9. On 5 April 2024, the Court fixed 28 October 2024 as the time-limit for the filing of the
Memorial of South Africa, and 28 July 2025 for the Counter-Memorial oflsraei.6
3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa
v. lsraelj, Provisional Measures, Order of26 January 2024. § 86
4 Letter of Registrar attached at Annex A hereto.
5 Provisional Measures, Order of28 March 2024, § 51
'Order of 5 April 2024, p.2
I 0. On 24 May 2024, the Court reaffirmed the provisional measures indicated in its Orders
of 26 January 2024 and 28 March 2024, which it said 'should be immediately and
effectively implemented', and indicated further provisional measures. 7
11. Ireland is acutely sensitive to the context within which these proceedings have been
initiated. The heinous terror attack perpetrated by Hamas against Israel on 7 October
2023 was reprehensible and Ireland has condemned and continues to condemn it
unequivocally. The murder of civilians, destruction of civilian property, taking and
keeping of hostages including children, use of human shields and the firing of
indiscriminate rockets at urban centres constitute serious violations of international
humanitarian law for which those involved must be held accountable. It is
unconscionable that hostages remain in captivity after more than fourteen months.
Ireland has consistently called for their immediate and unconditional release. Ireland
recognises, also, the deep hurt and sorrow that this attack caused and continues to cause
for the Government and people of Israel.
12. The prohibition of genocide is a peremptory norm of general international law. Ireland
recalls that the Court has described this and other such peremptory nonns as obligations
necessary 'to protect essential humanitarian values' 8, which values all States have a
common interest in protecting and observing.9 Ireland further recalls that the Court has
recognised 'the rights and obligations enshrined by the Convention [as] rights and
obligations erga omnes.' 10 The prohibition of genocide has an essential function in
ensuring the interests of humanity and the erga omnes nature of the rights and
obligations of States enshrined by the Convention. Accordingly, 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
7 Provisional Measures. Order of24 May 2024. § 57
8 Application of the Convention on the Prevention and Punishmen1 of the Crime of Genocide (Bosnia and Her:::egovina v.
Serbia and Montenegroj, Judgmcnt, l.C.J. Reports 2007 (the 'Bosnia Judgment'), § 147.
9 Barcelona Traction (Merits) [1970] !CJ Rep (I) p.3, §§ 33-35;_Queslions relating to the Obligation to Prosecute or E.xtradite
(Belgium v Senegal) [2012) !CJ Rep (I) p.422, §§ 68"69;_Application of the Convention on the Prevention and Punishment of
the Crime of Genocide ([he Gambia v kfyanmar) (Order on Request for the indication of Provisional Measures) [2020] ICJ
Rep3.§41
10 Applicalion of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugos/avlaj, Preliminary Objections, Judgment, I.CJ. Reports 1996 (II). §. 31
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.
13. 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.' 11
PARTICULARS OF THE BASIS ON WHICH IRELAND
CONSIDERS ITSELF A PARTY TO THE CONVENTION
I 4. 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
June 1976.12 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
15. In its Application, South Africa requests the Court to adjudge and declare, inter alia,
that Israel 'has breached and continues to breach its obligations under the Genocide
Convention, in particular the obligations provided under Article l read in co1yunction
with Article Il and Articles Ill (a), III (b), Ill (c), III (d), JI! (e), IV, V and Vl 13
I 6. Accordingly, Ireland considers that Articles I, II, III, IV, V and VI of the Convention
are in question. Ireland sets out in the following 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
11 Whaling in the Antarctic (Australia v. Japan), Declaration of lntervenlion a/New Zealand, Order of6 February 2013, I.CJ.
Reports 20 l3, p. 3, at p. 9, §. 18.
12 Copy of Notification by Director of the General Legal Division of the Office of Legal Affairs, United Nations Secretariat,
of the Accession by Ireland to the Convention attached at Annex B hereto,
13 Application of South Africa,§ 111 (2)(a)
which in these proceedings appears to be particularly relevant to the Court's
deliberations.
CONSTRUCTION OF ARTICLE I FOR WHICH IRELAND CONTENDS
17. 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.'
18. 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. \Vhile
Article I doe-S 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 A1ticle 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', ji-om being committed. The
Article does not expressis verbis require States to reji-ain ji-om 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
ji'om 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 Jar 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. '14
19. 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. 15 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
IIL.'16
20. 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
refrain themselves 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.
21. Therefore, in Ireland's view the Convention should be considered not only as a criminal
law instrument that obliges Contracting Parties to establish jurisdiction over, and punish
commission of, the crime of genocide by individuals, but also as a human rights
instrument that 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 WIIlCH IRELAND CONTENDS
22. Article II of the Genocide Convention provides:
14 Bosnia Judgment, § 166
15 Bosnia Judgment, § 163
16 Article IX of the Convention provides: 'Disputes between the Contracting Parties relating to the interpretation, application
orfitlfilmem of the present Convention, including !hose relating to the responsibility of a State for genocide or for any of the
other acts enumerated in article lll, shall be submitted to the International Court of Justice at the request of any of the parties
to the dispute.•
'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 qfthe group to another group.'
23. 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 tile Crime of Genocide
24. 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 whieh an individual may be held criminally responsible and, on
the other, an internationally wrongful aet 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.
25. 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 eriminal codes, an inference
of specific intent can be drawn from reckless commission of the prohibited act where
certain criteria are met.
26. 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 unlawfitl killings of members of the group have occurred. The
additional intent must also be established, and is defined ve1y 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.' 17
27. 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 relate in some way to a wider destructive
campaign or effort which he or she understands those actions will facilitate, or to which
they will contribute. 18
28. 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 of the protected
group, 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.
11 Bosnia Judgment, § J 87
18 By analogy. see International Criminal Tribunal for the former Yugoslavia {'the JCTY'). Prosecutor v. Brtlanin, IT-99~36-
T, Judgmem, I September 2004, § 330; and Prosecutor v. Galic, IT-98-29-T, Judgment, 5 De<:ember 2003, § 741
29. 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.
30. 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 Convention 19 but was substituted in later2° and final
drafts21 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.22 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.
31. 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. '23
32. It me1its observing that this construction also corresponds to the law regulating crimes
of specific intent in Ireland and many other States. 24
"UN Doc. E/447, 6126/47
20 I.JN Doc. El AC.25/12, 5/19/48; UN Doc. E/794, 5/24/48
21 UN Doc. A/C.6/289, l l/23/48
"UN Doc. E/AC.25/SR.24, 5112148
23 !CTR Chamber I, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, § 520 -
https://www.un.org/enlpreventgenocide/rwanda/pdfl AKA YESU%20-%20JUDGEMENT.pdf
24 In Ireland for instance: The People (DPPJ v. Douglas and Hayes, [1985] ILRM 28
State Responsibility
33. By definition, only States and other entities enjoying international legal personality may
commit internationally wrongful acts. TI1e 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.
34. 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.
This includes 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 or foreseeable
consequence.
Only Reasonable Inference test
35. Absent direct evidence of a general policy, plan or campaign - which is rarely
available25 -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. ' 26
36. The Court restated this test where it said that 'for a pattern of conduct, that is to SllJJ, 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 [ ... ]'27
37. This can be characterised as the 'only reasonable inference' test.
38. 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
25 As acknowledged by the parties in Croatia v. Serbia, Judgment, lCJ Reports 2015, § 143, and by the ICTY in Prosecutor
v. Tolimlr, Case No. IT-05-88/2-T, Trial Chamber Judgmenr, 12 December 2012, §. 745.
26 Bosnia Judgment, § 373
21 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. '28 The co-existence of two or more
intents does not mle out, exelude or displace either intent.
39. A clear example of this is where genocide is committed during the course ofan 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 Canc;ado
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, ii has been
pertinently warned that perpetrators ofgenocide 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. '29
40. Ireland submits that, in order to avoid the possibility of genocide being excluded in
most, if not all, cases of anned 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.
41. With respect to the '.fully conclusive' standard of proof which the Court has developed
in cases 'involving charges of exceptional gravity'30, 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
28 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 1 !8-20150203-JUD-01-!0-EN.pdf
29 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v, Serbia)~ Dissenting
Opinion ofludge Can,ado Trindadc, 3 February 2015, §. 144 - 118-20150203-JUD-Ol-05-EN.pdf
'° cj. C01fu Channel (United Kingdom v. Albania), Judgment, I.CJ. 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 rnles of attribution, as reflected in the
International Law Commission's 2001 draft Articles on Responsibility of States for
Internationally Wrongful Acts (the 'draft Articles').31
42. 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
43. 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, can 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
snbmitted 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:
31 Chapter II, Articles 4-11
• Killing members oftfle 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
policy, plan or campaign. However, the killing of a smaller proportion does not
necessa1ily 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 or other serious injury, or starvation of, and/or imposition oflong-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 me11tal 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 ( .. .]'32
Additionally, the ICTY (in Prosecutor v. Karadzic) has 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
to constitute an act of genocide' under the corresponding provision of the Statute
of that tribunal.33
J::t Bosnia Judgment, § 319
33 ICTY Case No. IT-95-5118-T, 24 March 2016, § 545
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.' In its Bosnia Judgment, the
Court construed Article II (b) to admit of a wide range of different acts, clarifying
that they were capable of constituting the material element of genocide. 34
Ireland draws particular attention 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
Galic case for instance, in a passage quoted with approval by the Court in the
Bosnia Judgmeni35, 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. ' 36
It follows from this that the intensity of attacks on civilians, where estab.Jished, is
an important factor in assessing specific intent.
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 effeet of these acts on more vulnerable victims (in particular children),
the impact of which is clearly considerably greater.
34 cf Bosnia Judgment, § 300, quoting Akayesu ICTR 96-4-T, Trial Chamber Judgment, 2 September 1998, §. 731, and
Prosecutor v. Stakic, lCTY, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, §. 516
"§ 328
"Prosecuto,· v. Galic, IT-98-29-T, ICTY, Trial Chamber Judgment, 5 December 2003, §. 593
• Deliberately inflicting 011 tlie 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, having regard to the object and
purpose of the Convention, Ireland contends that the infliction of conditions oflife
calculated to bring about the physical destruction of the protected group 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. '37
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 of genocide for the purposes of Article II ( c ). 38 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.
In assessing whether a State has violated Article II ( c) in the conduct of military
operations, consideration must be given to the impact of those operations on the
protected group. In particular, any such assessment should have regard to the
following factors:
o military attacks that directly result in very large numbers of civilian
deaths and injuries within the protected group;
o the forced displacement of a substantial proportion of the protected
group and, in particular, whether objects indispensable to the survival of
the civilian population are provided or available in places to which they
are displaced;
o the use of starvation of the civilian population as a method of warfare;
o attacking, destroying, removing or rendering useless objects
indispensable to the survival of the civilian population;
37 Croatia Judgmenr, § 16!.
36 Bosnia Judgment, !CJ Reports 2007, § 324.
o whether the use of force exceeds what is permitted by intemational law,
and in particular, whether its cumulative effect significantly exceeds
what is either necessary or proportionate;
o the extent to which military operations comply with fundamental
principles of intemational humanitarian law, in particular the principles
of discrimination and precautions in attack, and whether there is a
pattern of conduct in which these principles are not observed; and
o whether hindering or impeding provision of urgently needed basic
services and humanitarian assistance, including food, water, electricity,
fuel, shelter, clothing, hygiene and sanitation requirements, as well as
medical supplies and medical care, to the protected group lead to the
spread of famine and starvation within it.
• Foreseeability oftlie probable consequences oftlte 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
concemed 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 nnder the Convention, the Court has indicated provisional
measures that the Respondent State subsequently fails to implement.
• Particular effects of co11duct 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 Jong-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.39
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
and adult members ofit, 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 a11d discriminatory measures
Regular public statements made on behalf of State organs, or by persons or entities
empowered to exercise govemmental 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.40 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.
39 cf. for instance Guha Sapir et al (2018) 'Patterns of civilian and chHd deaths due to war-related violence in Syria: a
comparative analysis from the Violation Documentation Center dataset, 2011-16'. The Lancet Global Health, Volume 6iISSUE
I, and the 2024 Global Report on Food Crises (FSIN and Global Network against Food Crises, GRFC 2024. Rome ,
https://www.fsinplatfonn.org/grfc2024
40 ICTY, Prosecutor v. Brilanin, IT-99,36, T, Judgment, I September 2004, § 330
CONSTRUCTION OF ARTICLE III FOR WHICH IRELAND CONTENDS
44. 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;
(e) Complicity in genocide.
45. 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 done this by means of statute law giving effect to the Convention.41
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 ... '42
41 Genocide Act 1973, s. 2
42 Bosnia Judgment, § 381
46. 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
could be characterized as '[c]onspiraly 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.' 43
47. 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 instmctions
or under its effective control, but found it insufficient to establish State responsibility.44
Clearly, however, the case establishes that where sufficient evidence is available State
responsibility may be engaged.
DOCUMENTS IN SUPPORT OF THE PRESENT DECLARATION
48. 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
ofireland to the Kingdom of the Netherlands, dated 6 February 2024; 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
43 Bosnia Judgment, § 4 l 7
44 Bosnia Judgment, §s 416 et seq.
Convention on the Prevention and Punishment of the Crime of Genocide, dated
9 July 1976.
CONCLUSION
49. 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
South Africa against Israel.
50. The Government of Ireland has appointed Mr. Declan Smyth, Legal Adviser at the
Department of Foreign Affairs, as Agent and Ms. Ann Derwin, Ambassador of Ireland
to the Kingdom of the Netherlands, as Co-Agent for the purposes of the present
Declaration. The Registrar of the Court is kindly requested to transmit all
communications with respect to these proceedings to the following address:
Embassy oflreland to the Kingdom of the Netherlands
Scheveningseweg 112, 2584 AE
The Hague
S::J)~
Ann Derwin,
Ambassador of Ireland,
Co-Agent of the Government of Ireland
Annex A:
AnnexB:
Copy of the letter from the Registrar of the International Comt of Justice to the
Ambassador of Ireland to the Kingdom of the Netherlands, dated 6 February
2024;and
Copy of the 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.
BY email oniv
Annex A
COUP. INTEJI.NATIONAU
Of JUSTICE
IN1EltNAllONAL COURT
Of jl/5TlC(
161308 6 February 2024
I have the honour 10 refer tu my letter (No. 1610!0) dated 3 January 2024 informing your
{Jovcmmcnt thal, on 29 December 2023, South Africa filed in the Registry of the Court an
Applica1ion instituting proCCt,~ings against the State of hrnel ill the case concerning Applicatim1 of
1he Com·emion on 1he Prcrention and Pw1ishme111 Qf rfte Crime of Genocide il1 the Gaza S1rip
(Soutlt A/Nca v. Israel). A copy of the Application was appended to th.n letter. The text of the
Application ii- also available on the website of the Court (wv,w.i.:j~dJ.,xg).
Article 63, paragraph 1, of lhc Statute of the Court provides that:
[w]henever the construction ofa convention to which States (ltherthan those concemcd
in ihc case are parties i:; in question, lhc Registrar shall notif)' aH such States for01wlth".
Further, under Article 43, paragraph l, of the Rules of Court:
·'Whenever the construction of a con\ enlion to which States other 1han those
concerned in the case are parties may be in question within the meaning of Article 63.
paragraph l, of the Statute, the Court shull consider wh<H directions shnll he given to the
Registrar in the matter:·
On the in:stnictions of the Court, given ln accordance with !he said provision of the Rules of
Court, I ha\'C the honour to notify your Government of the following.
In the above~mcntioned Application, the l94S Convention on the PreYcn!ion and Punishment
of the Crime of Genocide (hcrchtaf'lcr the .. Genocide Convention") is 11\vokcd bolh ns: a basis oflhc
Cour(s jurisdil::ti-0n .:tnd .:ts a substantive b:isis of the Applican1's claims oo the merits, In particular,
the Applicant seeks to found the: Court'il jurisdiction on the compromissory clause contained in
Article IX of the Genocide Convention rm<l alleges vioJutions of Mieles I, Ill, IV, V nnd VI of the
Convention, It therefore nppcan; that the construction of this ins1rnment will he m qucstfon in the
case.
fLelh. -. r to the Stutes pnrtics to the Gem1ctdc Convention
(i;:xc;ept South Afrk-a and Israel)]
f>L•;icc l'il!acc. Oirt1cgi,:pkiu Z
2~ Ii KJ llu: Hague• Nal1.:thm<ls
.I.
P,il:u, d~· !.1 i',u,. CnnK"g1,:,pkm l
2Sl7 KJ L.1 Hil)l<' • P:1):;-B.1;,
l'\:lCpl'l.\)W • ,Jj (O} ](l J{f2 23 23 • r:1c;.im1ll:: -3110}7() 3M •)9 zi
Sm:Tn!l.'.011.'.t www.i,,;j,c1jmt
fi.•k'f'lmm: • 31 (0)7-0 J02 :!3 2J • ldcfa:>.. -31 tOi "10 364 4'J 28
Wch,.11~ wwv.,·frj,cq.nti:;
C:OUR INT€RNATLONAl,F
OE JlJST!CI:
INTERNA110NAL COURT
OF JUSTICE
Your country is included in the list of parties to the Genocide Convention. The present letter
should accordingly he regarded as the notification contemplated by Article 63, paragraph I, of the
Statute. l would add that this notification in no way prejudges any question of the possible application
of Article 63, paragraph 2, of the Statute, which the Court may later be called upon to dctennine in
this case.
Accept) Excellency~ the assurances of my highest consideration.
~h
Philippe Gautier
Registrar
(lV.l)
AnnexB
UNITED NATIONS • NATIONS UNlES
._,.,~L '""""'••-•-•«~ •••n,~ ~.,,_. .. u-.~>- ~ '<, ,,w,,
~u~ o~•••-~•u•"' .. •H•••~ .. ~• .,...,,.,. • .,.,..., ••
9 July 1976
COllV!H'l'IOH ON 'ffiE PREVEm'lON AND PUNlSJ!ME.tt'l' OF '1'iIE CRIME OF GENOCIDE
ADOPTED BY TUE OEllEAAt ASSFJ,!BLY OF TliE tmrn:O NATIONS OK 9 DECEMBER 191:iB
ACCESS!OH BY IREIAND
I have the honour, upon instl'\lctions f:t'())D the Secretary-Oeneral~ to
infoni you that* on 22 June 1916~ tbe ina'trurumt of tu::cession by tbe
Governl'llent of Inland to the Con~tion on the Prevention and Punishment
or the Crime or Genocide~ ruiopted by ~he Oenera.l Aanem.bly or ~he
United Nations on 9 December 1948~ vas depo&ited with the Secretary-General.
In aecordance with paragraph 3 ot it$ vticle XIII, the Convention
vill enter into toree tor Irelnnd on the ninethietb day folloving the
Qeposit of tbe in&trument or a.cceaaion, th&t i& to a-a::, on 20 5C}ltember 1916,
Accept, Sir, the ~ssu~ances of r,.y highest eonsideration.
l'Uaine Sloan
DiTeetor or the General Legal, Division,
in ebc:rgc or the ot!'ice o:(' t.ae:4.l Artaiu