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

[u/posixthreads]

https://opiniojuris.org/2025/05/26/genocidal-intent-in-armed-conflict-unpacking-the-icjs-only-reasonable-inference-standard/

[u/posixthreads]

This article is written by the legal team of Amnesty International (AI). It seems to be largely in response to Professor Stefan Talmon's opinion that AI's report is flawed in its understanding of dolus specialis. Specifically, he disagrees with the notion of "dual intent", whereby a actus reus of genocide can be perpetrated with both genocidal and military intent. Side note, Professor Talmon represented Myanmar in their genocide case alongside William Schabas, the latter recently explicitly stated there was a genocide.

Now to clarify, Professor Stefan isn't arguing that duel intent cannot exist, but that the legal standard for a finding of genocide before the ICJ is such that genocidal intent is the only reasonable inference one can make. To perhaps provide an example, let's compare Bosnia v. Serbia and Croatia v. Serbia.

In the final judgement, the judges pointed to several weaknesses in Croatia's case:

1. They failed to establish that forced displacement (ethnic cleansing) in the context of the conflict falls under Article II of the Genocide Convention.

2. The only direct evidence of dolus specialis was an isolated incident of a paramilitary leader ordering the explicit destruction of Croats during siege of Vukovar and an internal JNA report stating Serbian forces were planning a genocide. The judges reviewing that document could not understand how the conclusion of genocide was reached.

3. The judges found that when given the opportunity, Serbian forces largely opted for forced displacement rather than destruction of Croats.

4. Not a fan of this, but the judges looked at the scale of deaths. They said even if they take Croatia's number at face value (12500/168000), 7.4% of the population in the affected area was deemed not enough.

In the Bosnia case, the actions of the Srebrenica Massacre spoke for themselves:

1. This was a direct act of murder, which is the top actus reus in Article II.

2. The way in which the targets were selected was so specific that it could only lead to the conclusion of genocide. To give a better idea, consider what would have happened if Serbian paramilitary forces instead murdered every pre-menopausal Bosniak females. It would certainly be a finding for genocide as well.

3. Serbian forces had zero business overrunning Srebrenica. It was a deconflicted zone under UN protection.

4. I don't know what the scale is, and I have trouble finding the sources online. However, I recall William Schabas disagreed with the genocide claim because the amount of deaths in Srebrenica was not too high in his opinion. He seems to be have made a similar claim on behalf of Myanmar. Again, I don't know what total number of Bosniaks was at Srebrenica prior to the genocidal massacre, so I can't compare it to the Croatia case.

Now, to some extent, I agree that the "only reasonable inference" test might be a good mechanism against duel intent claims. A state facilitating a genocide can certainly throw its hands up and say "we were just targeting enemy forces and we were a bit sloppy", however if the judges see something like the perpetrator wiping out whole localities, they're (hopefully) not going to find the genocidal state's arguments reasonable. However, this seems unsatisfactory to me because when you use such imprecise legal reasoning it opens the door to judges voting based on gut feeling.

This seems to be what happened on the question of scale in the Croatia case, where Judge Bhandari's opinion (I think) was coloured by the massive death toll in the Rwandan Genocide. Personally, 7.4% does seems like a lot to me and what's worse is that they don't define what number range they're really looking for. Certainly 70-100% is a finding for genocide, but what about 50%, 30% or 15%? Are they only counting dead or physically harmed too? If half the population become amputees, do they count? If half of the children suffer malnutrition and therefore become physically stunted for life does that count? Malnutrition heightens the risk of neurological disorders such as autism (breastfeeding reduces risk of a newborn developing autism massively), do excess autism diagnoses count as well? Do they add the percentages up or do they pick the maximum value between them?

While I see where Professor Talmon's is coming from, he seems to think the standard set by the ICJ is somehow good and unambiguous.

[u/FerdinandTheGiant → u/posixthreads]

To point 4 regarding the scale at Srebrenica, I recall it was 40,000 targeted for “extinction” which was the total amount of Bosniak men and women in the area, but I can’t recall if they were considered independent from the total Bosniak population or treated separately.

[u/posixthreads → u/FerdinandTheGiant]

It would be the Bosniak population in Srebrenica only, it's officially known as the Srebrenica Genocide. The court never ruled on on a wider Bosniak Genocide. If 40000 is the number, then that's 20% of the Bosniak population. However, the fact that they were the male members of a patriarchal culture makes the act more destructive, as the court pointed out. Also, it's the fact that it was only one gender, which makes its impact doubly destructive.

[u/FerdinandTheGiant → u/posixthreads]

Per the ICTY’s Krstić trial judgment, it seems like the entire 40,000 was the target of destruction and was considered a part of a larger Bosnian Muslim whole:

By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.

But iirc the ICJ took a different approach? You can probably speak to that more than me.

[u/PitonSaJupitera → u/FerdinandTheGiant]

As I recall ICJ in Bosnia v Serbia simply agreed with ICTY judgements.

They targeted for extinction the 40,000 Bosnian Muslims

This is the part where I think ICTY went off the rails a bit, because their whole explanation of how the entire population of Srebrenica was supposed to be "destroyed" entails a different, not purely physical, notion of destruction the same court ruled is necessary for genocide. This results in an absurd contradiction when juxtaposed with ruling on genocide charge in 7 municipalities (the other genocide charge against Mladić and Karadžić). In fact it makes almost every violent ethnic cleansing a genocide.

As for Talmon's dual intention re Gaza, I think after 500 different statements of how the entire population is the enemy, one cannot take the claim Israel only has military intentions in Gaza seriously. It would require giving Israel an extraordinary and unreasonable benefit of the doubt regarding its intentions. Key word in ICJ standard is reasonable, just because one can come up with some theoretically plausible explanation does not mean court should accept it.

The only real debate that has serious merit is whether Israel has intention to physically destroy substantial part of Palestinian national group or just to deport ("ethnically cleanse") population of Gaza.

Argument for the former is strengthened by the fact Israel has in fact likely killed 5% of Gaza's population with overwhelming majority (75-80%+) of victims being civilians. If we're making a comparison to Bosnia this ratio exceeded 2:1 civilian to military ratio during 1992 ethnic cleansing campaign. Also total Bosniak fatalities were ~3% of the pre-war population over the course of three years and included combat deaths (roughly a half).

There's also no concrete plan of how that deportation would in fact be carried out, meaning anyone defending Israel would have to rely on the idea Israeli intentions hinged on vague hypotheticals.

[u/FerdinandTheGiant → u/PitonSaJupitera]

It has seemed at time contradictory and “off the rails” as you put it. To me though, it seems like it comes down to reproductive consequences of the killings which the ICTY felt would cause the group to be physically destroyed over time. I feel like in spirit this aligns with the Convention, as Article II(e) prevents forcible transfer of children between groups, which feels like would result in a similar consequence for the population.

I suspect the ICJ will find a genocide has occurred, though whether they will attribute state culpability is less cut and dry to me.

[u/PitonSaJupitera → u/FerdinandTheGiant]

To me though, it seems like it comes down to reproductive consequences of the killings which the ICTY felt would cause the group to be physically destroyed over time.

But if one looks at it from a reproductive standpoint, it's clear that women and children are much more important for biological survival than adult men. Even if we ignore adult women entirely (who could later have children with Bosniaks from outside of eastern Bosnia, assuming arguendo that all adult men from the enclave have been killed), a group will not physically disappear if younger generation survives.

Deliberate decision not to target women and children in the same manner as adult men would then seem to indicate perpetrators did not intent to attack the biological survival in that way.

I suspect the ICJ will find a genocide has occurred, though whether they will attribute state culpability is less cut and dry to me.

What makes you think attribution would be an issue here? Article 4 of Draft Articles on State Responsibility states the acts of State organs are attributed to the State. Article 7 emphasizes this remains true even if organs or person violates instructions or goes beyond its authority.

Given that the only armed force on Israeli side is Israel's own military, if genocide is committed, it will automatically be attributed to Israel.

The peculiar situation with attribution in Bosnia v Serbia comes from the fact one state was suing another state for actions perpetrated by nationals of the former fighting against their own government in an attempt to secede with the aid of latter.