Why the ICJ keeps throwing out genocide claims

By Jill Goldenziel

Fears and accusations of genocide stalk both the war in Ukraine and the war in Gaza. But as painful as the human suffering is in both regions, the Genocide Convention defines this worst of human atrocities very narrowly. Two recent rulings at the UN’s International Court of Justice serve as a reminder — and a sign that the court is walking back a 2019 ruling that opened the floodgates to genocide lawsuits. Both cases should serve as a warning to South Africa in its quest to have the court halt Israel’s military operations in Rafah.

In its recent decisions involving genocide accusations in Ukraine and Gaza, the ICJ has shown that it is unwilling to expand the definition of genocide beyond that in the convention: the intentional destruction, in whole or in part, of a national, ethnical, racial or religious group as such. These decisions, while disappointing for some human rights advocates, protect the original intent of the Genocide Convention — preventing the worst crime perpetrated by humanity.

In both Ukraine and Gaza, the ICJ has been asked to determine whether violations of the convention occurred. Vladimir Putin premised his February 2022 invasion of Ukraine on the alleged genocide of ethnic Russians in the Donbas. Ukraine argued in March of that year that Russia’s bad faith use of “genocide” as a pretext for the invasion violated the convention. Ukraine quickly succeeded in obtaining a grant of provisional measures against Russia, including a court order for Russia to stop the invasion.

However, on Feb. 2 the court threw out this “bad faith” argument — a blow to Ukraine and the unprecedented 32 countries that intervened in the lawsuit to support it. The court held that Ukraine’s objection to Russia’s justification for its invasion fell outside the scope of the Genocide Convention.

The court allowed only part of Ukraine’s case to continue: The judges will evaluate whether Ukraine’s actions in the Donbas amounted to genocide. This puts Ukraine in the bizarre legal position of defending itself, in the very case it filed, against Putin’s false accusations that he never actually brought before the Court.

The case against Israel came before the Court in a different way. Beginning in 2019, the Court allowed any state that was party to the Genocide Convention to bring claims against any other party. In late December 2023, South Africa asked the ICJ for a provisional measure to stop Israel’s entire military operation in order to prevent genocide.

The standard for receiving a provisional order is remarkably low — a state must only show that it is “plausible” that the Genocide Convention has been violated. The court did find “plausible” violations and ordered Israel not to violate the convention and to let more humanitarian aid into Gaza. However, the Court rejected South Africa’s argument that Israel must stop the military operation entirely.

Although the Court did not elaborate on its reasoning, as is typical in provisional orders, the bottom line is that the Court again refused to broaden the remit of the Genocide Convention.

Additional hearings and final decisions in both cases are likely years away. Any determination of whether genocide occurred in these conflicts will require thorough examination of the actors’ intent and actions.

In both rulings, the Court has shown that it will determine only whether a state’s intent and behavior violates the terms of the convention, and not stretch its interpretation of the treaty beyond its original purpose. It will not entertain other legal grievances outside the scope of the convention that masquerade as Genocide Convention claims. In Ukraine’s case, the court showed that it is unafraid to reject the opinion of more than 30 states in order to protect the law. As for Israel, the court’s ruling is unpopular both in Israel and with the diplomats, legal scholars and human rights advocates who think genocide is occurring in Gaza.

The court’s 2019 rule change opened the floodgates to genocide lawsuits by any state that does not like another’s war efforts — especially given the low bar for provisional measures. But with its rulings on Ukraine and Gaza, the Court is saying “not so fast.” This is a necessary correction — an attempt to close the floodgates and to preserve the meaning of the convention itself.

On Feb. 13, South Africa petitioned the ICJ to stop Israel’s expansion of its operations in Rafah, arguing that its military actions would violate the Genocide Convention. This claim lies beyond the scope of the convention and is likely to fail. The convention only permits the court to decide whether a state’s actions amount to genocide. It does not allow the court to determine prospectively declare Israel’s hypothetical military plans illegal. As commendable as the goal of stopping a humanitarian catastrophe in Rafah may be, a Genocide Convention lawsuit is not the right way to do it.

The court understands that abusing a term dilutes its intended meaning. Stretching the Genocide Convention too far undermines the rights — and the people — that it was designed to protect. Words have meaning — and misusing them has consequences beyond having a case thrown out of court.

Misusing the term erodes its power, meaning, and protection against the most atrocious crime in human history.