Michael Higgins: ICJ risks destroying credibility if it redefines genocide

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A ruling expected shortly by the International Court of Justice in the Hague could pave the way for a host of countries, including Canada, to stand trial for genocide.

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In the case of Gambia versus Myanmar the ICJ has been asked to lower the threshold for genocide and if the judges agree it would almost certainly lead to an avalanche of lawfare cases.

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The World Court would find itself less concerned with justice than politics.

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Indeed, politics is at the heart of the effort to reduce the standard for genocide. A lower standard would make it easier for South Africa to make its case at the ICJ that Israel is committing a genocide in Gaza.

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But if the ICJ lowers the threshold merely to appease those who wish to punish Israel then it makes a mockery of itself.

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Genocide is the “crime of crimes.” Raphael Lemkin, a Polish-Jewish lawyer, coined the word in 1944, writing, “By ‘genocide’ we mean the destruction of a nation or of an ethnic group.”

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Four years later, the Geneva Convention defined genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

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To prove genocide involves making the case that there was a “specific intent” to destroy a group, in whole or in part.

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Alan Kessel, a Canadian lawyer and diplomat who represented Canada in the early stages of the Myanmar case, said, “Genocide is probably the most difficult issue to prove and it was designed that way. It was particularly made difficult because we do have war crimes, crimes against humanity, but genocide would be the most heinous.”

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Canada, along with Denmark, France, Germany, the Netherlands, and the United Kingdom intervened in the Myanmar case “in order to set out their interpretation of the relevant provisions of the Genocide Convention before the Court,” said a statement from the Canadian government in 2023.

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Ireland was also granted intervenor status but in its submission it asked the ICJ to broaden its interpretation of what constituted a genocide. It has made a similar submission in South Africa’s case against Israel.

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Kessel, who has retired from the federal government but was the assistant deputy minister for legal affairs at Global Affairs Canada, said Ireland has been pushing for countries to be found guilty of genocide on the basis that they “should have known of the natural and probable consequence of the conduct.”

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“That is not a test that any of us uses and it’s not a test that we would want to see the ICJ use because that would be open to incredible mischief,” said Kessel, now a senior fellow at the Macdonald Laurier Institute.

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“The ‘should have known’ basis is not what we consider a clear intent. It’s a much lower basis. I mean, anybody should have known or could have known or might have known.”