Ireland’s ICJ bid to redefine genocide suggests it knows accusations can't hold ground

LEGAL AFFAIRS: The definition of genocide is firmly established in the Genocide Convention and explicitly requires clear evidence of an intent to destroy a protected group.

By NATHAN KLABIN/THE MEDIA LINE DECEMBER 20, 2024 10:48

IRELAND HAS joined South Africa in its accusations of genocide at Israel. Here, jurist Malcolm Shaw looks on at the ICJ during a ruling on South Africa’s request to order a halt to Israel’s Rafah offensive in Gaza in May. (photo credit: JOHANNA GERON/REUTERS)

Ireland is going to request that the International Court of Justice (ICJ) in The Hague broaden its interpretation of genocide amid the ongoing war between Israel and Hamas, with Ireland’s deputy prime minister, Micheál Martin, asserting that the IDF’s actions in Gaza constitute “collective punishment” of Palestinians.

Martin expressed concerns that a “narrow interpretation” of genocide fosters a “culture of impunity,” minimizing civilian protection. The Irish leader emphasized that Ireland’s perspective on the UN’s Genocide Convention is more expansive, prioritizing civilian safety. However, he failed to make any mention of the 100 hostages and dead bodies that remain in Hamas captivity today.

Ireland secured cabinet approval to intervene in South Africa’s existing case at the ICJ against Israel over its actions in Gaza. Israel is facing allegations of committing genocide against Palestinians, allegations it has consistently denied, labeling them as unfounded and misleading. Ireland’s announcement also requested a change in the definition of genocide in Gambia’s case against Myanmar under the same UN Genocide Convention.

Iain Edwards, a defense counsel at the International Criminal Court (ICC), also in The Hague, explained to The Media Line that the Irish filing will be made later this month, and that the details of the argument will be provided only then.

“I think the interpretation of how a state can commit genocide should not be excessively widely drawn, but there is certainly scope for the ICJ to look at the question afresh,” Edwards said.

International Court of Justice (ICJ) holds a hearing to allow parties to give their views on the legal consequences of Israel's 'occupation' of the Palestinian territories before eventually issuing a non-binding legal opinion in The Hague, Netherlands, February 19, 2024. (credit: REUTERS/PIROSCHKA VAN DE WOUW)

Jackie Goodall, the founder and executive director of the Ireland Israel Alliance, bashed the initiative and highlighted its motivation.

“All of this is the appeasement of hostile and aggressive anti-Israel protesters and marchers, many of whom cover their faces with masks and keffiyehs, who regularly advocate for Israel’s destruction and defiantly call for ‘Zionists out of Ireland’ while flying Hamas, Hezbollah terrorist flags on the streets of our main cities and even outside government buildings. They remain unchallenged,” she said.

“We are very concerned with how this issue is impacting Ireland’s diplomatic relationship with Israel. We fear this issue will further escalate matters between our two countries in the medium and long term,” Goodall added.

According to Goodall, the move does not reflect the sentiments of most Irish people; however, “the increasingly hostile climate is very concerning, as many supporters are ever more fearful of extremist elements.”

For Dr. Eliav Lieblich, a scholar in public international law and a professor at Tel Aviv University, “The intervention by Ireland in South Africa’s case is a diplomatic blow to Israel, which highlights that this case does not strictly reflect a division between the Global North and the Global South – although Ireland has historically been supportive of the Palestinians.”

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Dr. Tammy Caner, director of the Law and National Security Program at the Institute for National Security Studies, believes it is essential to seek explanations from Israel “regarding its controversial military actions; Israel may not be perfect and has made several mistakes, but the only genocidal war criminal in this war is Hamas. Requesting the ICJ to broaden its interpretation explicitly indicates that Israel is not committing genocide.”

Lieblich also agrees that attempting to change the definition of genocide amid a trial on the subject tells how the case is being seen by its supporters. “The text of the letter is a double-edged sword for the case since Ireland seems to concede that the accepted interpretation of the crime would not apply in this case and argues that it should be changed,” he said.

“Israel and its supporters will seize on this statement to claim that Ireland implicitly admits that Israel is not committing genocide based on accepted standards,” he added.

Asserting that Ireland would most likely not make other accusations against Israel if its effort in getting the court to redefine genocide won’t succeed, Lieblich said: “Defining new crimes would not assist here, because the reason that the ICJ has jurisdiction over this case is specifically tied to the convention against genocide,” he added.

South Africa was only able to appeal to the ICJ rather than the ICC criminal court, based on the claim that Israel violated the UN Genocide Convention, to which both Israel and South Africa are parties. There were no other UN conventions under which South Africa could charge Israel for violations.

The definition of genocide is firmly established in the Genocide Convention and explicitly requires clear evidence of an intent to destroy a protected group, either in whole or in part.

“While the ICJ has the authority to interpret the [Genocide] Convention, it cannot redefine this essential term simply upon Ireland’s request,” added Caner.

Regardless of whether the ICJ will accept Ireland’s move, it has amplified an already fraught international debate about the situation in Gaza.

Broader implications

As the ICJ deliberates on this contentious issue, the implications will certainly extend beyond Israel and Ireland, testing the balance between evolving interpretations of human rights and the foundational principles of legal precedent and impartiality.

The Irish government’s press release, making no distinction between civilian victims in Gaza and Hamas terrorists, stated only that “there has been a collective punishment of the Palestinian people through the intent and impact of military actions of Israel in Gaza, leaving 44,000 dead and millions of civilians displaced.”

Along with Ireland’s continued refusal to adopt the International Holocaust Remembrance Alliance’s definition of antisemitism, this framing has fueled Israel’s accusations of bias and selective application of international law, according to Goodall.