By Zsuzsanna Deen-Racsmány, PhD
In January 2026, the International Court of Justice (ICJ or Court) held public hearings on the merits in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). In their oral pleadings, both Parties accepted the dominant interpretation of “intent to destroy” in Article II of the Genocide Convention (Convention)—developed in the jurisprudence of the ad hoc criminal tribunals for Yugoslavia (ICTY) and Rwanda (ICTR), confirmed by the ICJ in Bosnia v Serbia (para 344) and, more categorically, in Croatia v Serbia (para. 136)—that genocidal intent must seek the physical-biological destruction of a protected group (eg, here, p 32, para 26; and here, pp 44-45, paras. 15-16). The declarations of the intervening States, not heard during the oral pleadings, have not challenged this position either. Consequently, the Court may not need to address this matter in its forthcoming judgment, beyond restating its previously reached conclusions.
In this post, I argue that the Judges still can and ought to seize this opportunity to revisit the ICJ’s position regarding this point. To underpin the need to do so, I briefly address a main flaw of the Court’s prevailing interpretation of genocidal intent, one related to a point raised by Myanmar during the oral pleadings: the ICJ’s mechanical reliance on the jurisprudence of the ICTY and ICTR and its corresponding failure to distinguish between interpreting Article II of the Convention as a treaty rule and as a criminal law provision.
Why must the court still consider this matter in detail?
The interpretation of “intent to destroy” is clearly relevant to the case. Already a 2018 report of the Independent International Fact-Finding Mission on Myanmar (FFM) concluded that large-scale sexual violence (ie genocidal actus reus) had been committed with intent “at least in part, to weaken the social cohesion of the Rohingya community and contribute to the destruction of the Rohingya as a group and the breakdown of the Rohingya way of life” (para 941, cited in the Gambia’s Application, para 98), ie with intent to destroy the group other than physically or biologically. Moreover, in its 2026 oral pleadings, the Gambia frequently referred—or quoted texts referring—to destruction of the group’s social cohesion, social fabric, the “architecture of Rohingya social life”, “Rohingya way of life” or culture, and to forced displacement (here p 20, para 3; p 21, para 4; p 25, paras 14-15; p 26, para 18; p 29, para 10; p 66, para 29; p 71, para 46 and here pp 18-19, para 31; p 30, para 25). Though the relevant arguments may have been presented in support of a pattern of conduct from which genocidal intent may be inferred the invoked concepts are commonly associated with groups’ social destruction and thus with cultural genocide, a legal category which the ICJ declared not to fall under the Convention’s prohibition.
However, mounting volumes of critical studies (e.g., Novic, Mundorff, Abtahi (Chapter 5), Berster (‘Article II’) and Greenawalt) published since Croatia v Serbia convincingly argue that intent to destroy a group in a non-physical-biological sense also constitutes genocidal mens rea under the Convention. Accordingly, and considering the previously long-prevailing disagreement regarding this matter (for dissent in the jurisprudence see, e.g., Krstić Appeal, Partial Dissenting Opinion of Judge Shahabuddeen, paras 48-54, Blagojević and Jokić, paras. 657-666, Krajišnik, para. 854; and Jorgić, para (III)(4)(a)(aa), margin note 22), it is understandable that Myanmar pre-emptively emphasised already in 2019 the “important distinction between physical and cultural genocide, one to which this Court has previously attached considerable significance” (p. 34, para. 40), pointing to a statement in the above-quoted FFM Report (para. 1438).
As The Gambia, too, accepted the position that actus reus committed with intent to destroy the group in a non-physical-biological sense does not constitute genocide, the court strictly speaking does not need to address that matter beyond reciting its established position. However, it is still entitled do so. Whereas the principle of party presentation may limit the Judges’ freedom to step beyond the Parties’ submissions in terms of facts and inferences drawn from those, the interpretation of the Convention (i.e. of the law) is a different matter: jura novit curia. The ICJ’s competence to interpret the law extends beyond considering the arguments raised by the Parties, and it may reject legal arguments presented by them even if those are not contested by the other party.
It may even depart from its own jurisprudence when “there is cause not to follow the reasoning and conclusions of earlier cases” (para. 28). Accordingly, it is not bound by its position arrived at in Bosnia v Serbia and confirmed in Croatia v Serbia regarding the nature of genocidal “intent to destroy”. It may reopen this question, should the Judges deem it necessary to do so.
Importantly, in its intervention in South Africa v. Israel, Mexico (para. 35) rejected the court’s established position on this question. Though—and, indeed, as—the Court’s judgments are final and may not be subjected to review to correct the underlying legal reasoning (ICJ Statute, Art. 61), it would appear prudent for the Court to address this issue in detail in The Gambia v Myanmar in light of this already known challenge.
Revisiting the matter in The Gambia v. Myanmar appears called for also due to Myanmar’s submissions concerning an apparently unrelated matter: the distinction between individual criminal responsibility and State responsibility. This was—in part due to questions posed to the Parties by Judges Charlesworth and Hmoud (pp. 44 and 47-48, respectively)—a recurring issue in the oral pleadings, predominantly regarding the required standard of proof. However, Myanmar’s original argument challenging the Gambia’s submissions (para 3.5)—which clearly inspired at least Judge Hmoud’s question—was that the distinction between individual criminal responsibility and States responsibility had to be observed in relation to the interpretation and application of the criteria relevant for proving genocide in general, including genocidal intent (p. 41, paras 5-6). “Par conséquent, la prise en compte de la jurisprudence des juridictions pénales internationales doit se faire avec discernement et non automatiquement” (here p. 41, para. 6, see also p 46, para 21; p 51, para. 41 for similar statements). While the Gambia subsequently did not address this argument except regarding the required standard of proof (pp 24-28), it continued to cite ICTY and ICTR judgments (eg, here p. 29, para 31; p 41-42, paras. 31, 33) in support of its arguments in other contexts without explanation. The parties thus appear to disagree on this point. Moreover, as discussed below, Myanmar’s submission concerns a fundamental issue which, left unaddressed, could impair the validity of the Court’s conclusions concerning several elements of its judgment, including the treatment of the nature of genocidal intent.
The ICJ’s interpretation of genocidal “Intent to Destroy” replicates the jurisprudence of the ad hoc criminal tribunals
The convention does not specify that genocidal intent must seek to destroy a group physically or biologically. The interpretation of “to destroy … a group” in the chapeau of Article II consistently with the law of treaties (see VCLT, Arts 31-32, reflecting customary international law) does not support such a requirement either.
Significantly, even Serbia’s counsel (p. 14, para 12.) acknowledged in Croatia v Serbia that depending upon how canons of interpretation were applied to the problem, it was possible, in the past, for reasonable people to differ about the scope of the words “with intent to destroy”, and more specifically as to whether the word “physically” should be added as an adverbial modifier of the verb “to destroy”.
However, as he promptly added, the question was conclusively settled by the ICTY—starting with Krstić (para. 580)—and by the ICJ in Bosnia v Serbia (para 344), in favour of reading that qualification into the text of Article II. Significantly, the ICTY and the ICJ—like the International Law Commission (‘ILC’) on whose position expressed in the commentary of the Draft Code of Crimes Against the Peace and Security of Mankind (Draft Code) (pp 45-46, para 12) both heavily relied in this context—based this interpretation on the Convention’s travaux préparatoires, without even briefly referring to the primary means of interpretation prescribed by the law of treaties. In Croatia v. Serbia (para. 136), the Court endorsed this approach.
Zsuzsanna Deen-Racsmány holds a PhD in public international law from Leiden University. She is an independent researcher and has worked, inter alia, at Leiden University and the University of Amsterdam, and been a rapporteur for Oxford International Organisations.
