Can Armed Attacks That Comply With IHL Nonetheless Constitute Genocide?

In its presentation before the International Court of Justice (ICJ) on Jan. 12, 2024, Israel responded to South Africa’s allegation of genocide by citing its commitment to international law. Because it is abiding by the requirements of international humanitarian law (IHL), Israel argued, there is no way it can be committing genocide.

As Tal Becker, the legal adviser at the Israeli Ministry of Foreign Affairs, put it:

Israel is committed, as it must be, to comply with the law, but it does so in the face of Hamas’ utter contempt for the law. It is committed, as it must be, to demonstrate humanity, but it does so in the face of Hamas’ utter inhumanity. ... [These commitments] are matched by genuine measures on the ground to mitigate civilian harm under the unprecedented and excruciating conditions of warfare created by Hamas. It is plainly inconceivable under the terms set by this very Court that a State conducting itself in this way, in these circumstances, may be said to be engaged in genocide, not even prima facie.

Israel argued that South Africa was, in contravention of ICJ precedent, improperly using the Genocide Convention to address a fundamentally different matter—the “brutal impact of intensive hostilities on the civilian population” in the context of armed conflict. In other words, Israel claimed that South Africa was construing as genocide what is actually a tragic—but legal—consequence of its war with Hamas.

At this stage of the case, the court was only concerned with whether it is plausible that the rights of Palestinians in Gaza under the Genocide Convention are implicated; that is the standard for imposing provisional measures. It will be quite some time—likely several years—before the parties argue over, and the court decides, whether Israel has in fact committed genocide. But these opening arguments seem to provide some insight into how Israel will make its case at the merits phase.

Among several arguments Israel seems likely to make, one seems to be that it cannot be committing genocide because it is adhering to IHL. There’s just one problem. That position seems to assume that, as a matter of law, it is impossible to commit genocide while complying with IHL—in other words, that IHL compliance is an absolute defense to allegations of genocide. But what if that assumption is wrong?

Set aside the questions of whether or not Israel is indeed complying with IHL, and whether or not it would be able to convince the judges of the ICJ as much when the case ultimately reaches the merits phase. Those are fact-specific inquiries for a later date; we will not attempt them here. (We also note that we do not address here the legal issues presented by the request by the International Criminal Court’s chief prosecutor for warrants against Hamas and Israeli leaders; those proposed charges do not include genocide and relate to individual rather than state legal responsibility.) Our analysis focuses solely on questions of state responsibility for commission of genocide under Article III(a) of the Genocide Convention.

It’s easy to imagine situations in which other states will adopt Israel’s apparent position. This is far from the first time that a state has been accused of genocide in the context of an armed conflict—indeed, many have claimed that Russia is committing genocide in the course of its ongoing war in Ukraine—even if it is the first time the question has been squarely presented to the ICJ. So it is worth inquiring whether, purely as a legal matter, this particular defense—that it is impossible to commit genocide while complying with IHL—may be based on a faulty premise.

At first glance, this seems a rather absurd notion. IHL prohibits targeting civilians. Genocide would appear predicated on attacks against civilians—it’s defined as certain enumerated acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Surely a “group, as such” would necessarily include civilians.

So if IHL protects civilians, how can complying with that body of law not rule out the possibility of genocide?

The Limitations of IHL

As a preliminary matter, it’s worth noting—as the ICJ itself recognized in Croatia v. Serbia— that IHL and genocide are different bodies of law, and violations of one are not coterminous with violations of the other. It’s a familiar concept in both domestic and international criminal law: Notwithstanding the prohibition against double jeopardy, prosecutors often charge an individual with two or more crimes stemming from the same conduct. Doing so constitutes double jeopardy only if the elements of one crime are wholly included in the elements of the other(s); if the crimes have independent elements, prosecutors may charge both (or all). Likewise, the distinguishing element of genocide—namely, the intent to destroy, in whole or in part, a racial, religious, ethnic, or national group—is absent from the elements of war crimes. Thus, criminal violation of IHL (war crimes) does not establish the existence of genocide. And compliance with IHL does not necessarily exclude the commission of genocide.

But how could it possibly make sense that conducting hostilities consistent with IHL could still be genocide? In short, it’s because IHL is not quite so absolute in its protection of civilians, the group from which victims of genocide are drawn. Although IHL protects civilians, it does not make all civilian harm or even death ipso facto unlawful. It requires only that such harm be the unfortunate by-product of attacks that comply with IHL—that is, attacks that respect the IHL principles of military necessity, distinction, proportionality, and precaution. 

Consider the following hypothetical scenario. The context is indisputably an armed conflict, so IHL is the applicable legal framework. State A is respecting the principle of distinction by targeting only individuals whom it knows to be enemy combatants and only those objects it knows to be legitimate military objectives, and the methods by which it is making those assessments are lawful. It is respecting the principle of proportionality by carefully assessing that anticipated civilian casualties are not disproportionate to the anticipated military advantage. It is respecting the principle of precaution by taking actions to minimize harm to civilians and civilian objects. The weapons it is using—that is, the means of attack—are lawful. It has not committed any war crimes, such as “grave breaches” of the Geneva Conventions or its Additional Protocols, violations of Hague rules concerning means and methods of combat, or violations of Article 8 of the Rome Statute. That is to say, State A is, in this hypothetical, in perfect compliance with IHL and completely innocent of war crimes.

Nonetheless, State A’s conduct results in the destruction of civilian infrastructure and a massive number of civilian casualties, including both deaths and “serious bodily harm.” State A’s military campaign results in a lack of food, water, and electricity in the areas in which surviving civilians remain; these “conditions of life” will almost certainly result in death or injury. The civilians are all part of a “national” or “ethnical” group. And members of State A’s government and military have made statements sufficient to establish mens rea, that is, “intent to destroy, in whole or in part,” the civilian group. So both elements of genocide as set forth in the Genocide Convention—the physical element and the mental element—are present.

Does State A’s adherence to IHL somehow nullify the fact that these elements constitute a violation of the Genocide Convention?

By the convention’s own terms, the answer should be no. In Article I, the convention expressly states that “genocide, whether committed in time of peace or in time of war, is a crime under international law” (emphasis added). Both the Geneva Conventions—the foundational treaties of IHL—and the Genocide Convention were drafted and opened for signature within a few short years of each other; all involved would have been aware of both. Principles of international law support the same conclusion: Although IHL is the primary legal framework applicable in armed conflict, it is not the only one. International human rights law and international criminal law also apply, albeit subject to limitations under the doctrine of lex specialis. For instance, elements of international human rights law that prohibit the arbitrary deprivation of life without due process of law are supplanted by, or at least construed in accordance with, IHL rules that implement IHL principles of military necessity, distinction, proportionality, and precaution. Other provisions of human rights law that are not contrary to applicable provisions of IHL remain in effect in armed conflict, as do provisions of international criminal law—such as genocide—that permit or mandate accountability for human rights violations.

Of course, actually applying the doctrine of lex specialis to real-world conflicts is fraught with challenges. But a closer examination of the two legal frameworks at issue demonstrates that there is a delta between them—and it is that delta that makes it theoretically feasible to violate the Genocide Convention while adhering to IHL. Here, it is worth pausing to acknowledge that jurisprudence from the International Criminal Tribunal for the Former Yugoslavia (ICTY) suggests that individual responsibility for genocide requires that there be no alternative explanation for the conduct that is inconsistent with genocide. But it’s not clear how—or whether—that precedent would be persuasive in a case involving state responsibility, as distinct from the question of individual criminal responsibility that was at play in the ICTY. Nor is it clear that it should be.

Analyzing Violations

The most important distinction between IHL and genocide is how violations are analyzed. IHL traditionally focuses on individual attacks and asks whether, based on the information available to the attacker at the time, a specific action was justified by military necessity and respected the principles of proportionality, distinction, and precaution. Genocide, by contrast, focuses on certain kinds of acts (enumerated in the convention) in combination with overall strategic or political goals, usually in war (demonstrative of intent).

IHL is notoriously vague as to what constitutes a violation of each of its fundamental principles. For instance, the mere fact of civilian death and destruction, even at a large scale, is not per se evidence of unlawfulness. So long as the harm is not excessive in relation to the military advantage gained in any individual attack against a legitimate military objective, IHL permits it. Even within the subset of violations of IHL that rise to the level of criminality—that is, war crimes—definitions are somewhat vague. The International Criminal Court’s formulation of the war crime of disproportionate attack, for instance, sets a high standard of proof: The Rome Statute, Article 8.2.b.iv. criminalizes only those attacks that are “clearly excessive.” Neither the court’s statute, nor its Elements of Crimes document, nor its jurisprudence offers metrics for the determination of what is “clearly excessive.” In short, IHL requirements of proportionality are imprecise, and the criminality of the violation is quite difficult to prove, leaving the party that inflicts significant civilian harm a good deal of legal leeway.

But what of the principle of precaution? If a party to armed conflict takes reasonably available precautions to minimize civilian harm, as is required by IHL, this would at least mitigate, if not negate, evidence of genocidal intent. But again, the principle’s lack of definitional precision makes it theoretically possible (if highly unlikely) that genocidal intent is present. Again, IHL is necessarily vague as to what constitutes sufficient precautions. And it gives considerable discretion to military commanders—who must make decisions in real time, and based on frequently imperfect intelligence—to balance military necessity against civilian protection. IHL also recognizes that there are circumstances in which precautionary measures are not feasible.

Taking precautionary measures to prevent civilian deaths, even if successful, does not ipso facto eliminate the possibility of genocide, for two reasons. First, genocidal intent can be limited to intent to destroy “in part” a national, ethnical, racial or religious group. What about a campaign that had the effect of killing every member of a group under the age of 55, on the belief that all were combatants and thus lawfully targetable, that nonetheless took precautionary measures to protect everyone in that group over the age of 55—couldn’t that meet the convention’s definition? Admittedly, jurisprudence from the International Tribunal for the Former Yugoslavia suggests there may be a “quantitative criterion” for genocide, at least as to individual responsibility, which would make precautionary measures even more likely to negate genocidal intent. On the other hand, another enumerated act under the Genocide Convention is “imposing measures intended to prevent births within the group,” which would undoubtedly be another consequence of a campaign to kill everyone in the group under the age of 55.

Second, the enumerated acts in Article II of the Genocide Convention go beyond killing. So even if a party took all possible steps to protect against civilian deaths—providing advance warnings, staging attacks at night, or the like—it could still meet the act requirement of genocide by other means. In fact, acts that may look like precaution under IHL could also look like acts under Article II of the Genocide Convention. For instance, evacuation orders that would remove civilians from an attack zone but also force them into desperate conditions likely to result in deaths and injuries could be perceived as precaution but could also be perceived as evidence of “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” for purpose of the act requirement in Article II(c) of the Genocide Convention. (As always, the latter interpretation would also require evidence of intent to actually meet the definition of genocide.)

Complying with the IHL principle of distinction does not necessarily preclude the commission of genocide either. The principle counsels that combatants and military objectives may be targeted and that civilians and civilian objects may not. The directive is clear enough on its face, but the determination of who is a combatant (as opposed to a civilian) and what is a military object (as opposed to a civilian object) is often fraught. This is especially the case in conflicts involving non-state armed actors who often, and in violation of IHL, fail to adequately distinguish themselves from the civilian population, thus inhibiting the opposing party’s ability to adhere to the principle of distinction. It is also the case in relation to the categorization of “dual use” objects, namely those that have both a military and civilian function, such as a bridge or an electric grid.

Adhering to the principle of distinction is undoubtedly susceptible to parties’ applying the requirement in bad faith, all the while claiming to respect it. But proving such bad faith, particularly in light of the inherent subjectivity of the analysis, is far from straightforward. If a party to armed conflict decides to err on the side of targetability of persons or objects for either of these reasons, they may or may not be in violation of IHL. Additional Protocol (I) to the Geneva Conventions states that if the status of either people or objects is unclear, parties to the conflict must presume both are civilian in nature, and the International Committee of the Red Cross has concluded that this presumption is established as customary IHL. But whether the status is unclear is a subjective determination, and it’s one made much more complicated by non-state combatants intentionally failing to distinguish themselves from civilians, or by a prevalence of dual-use objects. So it’s not impossible for a party to make lawful targeting decisions in such a context while still harboring genocidal intent and committing acts of genocide. 

The differing analytical focal point for determining violations of IHL versus genocide is also significant. Recall that IHL as traditionally interpreted looks at a calculus made at the level of individual attacks, whereas genocide looks at certain acts in combination with intent. Attacks that are lawful under IHL can, in the aggregate, still result in conditions that, in the language of the Genocide Convention and the Rome Statute Article 6, “deliberately inflict[ ] on the group conditions of life calculated to bring about its physical destruction in whole or in part.” This is particularly true in light of what IHL calls “dual use” objects. Fuel installations, electrical grids, telecommunications, and even residences, schools, hospitals, and food distribution networks may be, or may become, legitimate military objectives. But targeting those objects can result in intolerable conditions of life for the civilian population, particularly in the aggregate. It is not hard to imagine that a conflict involving significant numbers of dual-use objects could, over time, lead to “conditions of life” which, if combined with the requisite intent, may constitute genocide.

Conflicts constituting siege warfare are also vulnerable to this apparent paradox. Siege warfare is not a per se violation of IHL; rather, it is governed by the same rules of distinction and proportionality that govern all attacks. So, to the extent a siege is targeted at legitimate military objectives, it is (arguably) permissible under IHL so long as the anticipated civilian harm is not disproportionate to the anticipated military advantage. This evokes the inherent vagueness, and thus uncertainty, of what constitutes “disproportionate.” But, in light of IHL’s focus on individual attacks and deference to individual commanders’ prospective analysis, it is possible that siege warfare could comply with IHL even if it results in conditions that meet the Genocide Convention’s act requirement.

The advent of artificial intelligence (AI) highlights another discrepancy between IHL and the Genocide Convention. Legally and technologically sophisticated parties to armed conflicts have begun using AI in targeting decisions. The international community is just starting to grapple with the implications, but one thing is clear: Outsourcing targeting decisions to AI creates an accountability gap. The question of whether a military is complying with IHL in conducting hostilities becomes a question of whether the algorithm that military uses is doing so. That ceding of responsibility to AI could obscure an intent to destroy, wholly or partially, a racial, religious, ethnic, or national group, all the while limiting attacks to those that comply with IHL principles of distinction, proportionality, and even precaution. 

Responsibility for Violations

International law distinguishes between state responsibility and individual responsibility. As a practical matter, conduct in war is always carried out through the agency of individuals. Assessing IHL compliance is thus necessarily focused on individuals’ actions. Likewise, assessing potential violations of the Genocide Convention is also focused on individuals’ actions. And individuals may be personally liable for both genocide and war crimes (the latter defined as “grave breaches of the Geneva Conventions” or “other serious violations” of IHL). But for the purposes of determining whether the state is liable for such conduct, the analysis turns on principles of state responsibility. This, of course, is the relevant question for the ICJ, which has jurisdiction only over states.

When considering a case under the Genocide Convention, the ICJ must determine whether the acts allegedly falling within the definition of genocide as set forth in Article II—including killing or causing serious bodily or mental harm—were attributable to the state. The inquiry is relatively straightforward as it pertains to actions by the state’s own military during armed conflict; under customary international law, a state bears responsibility for the actions of its armed forces, which are a “state organ.” So it would seem uncontroversial that if a military commits one of the acts enumerated in the Genocide Convention, that will suffice to establish the convention’s act requirement with respect a potential state violation.

The act(s), of course, are only one part of the picture. The key requirement for establishing a violation of the Genocide Convention—and the one hardest to prove—is genocidal intent. That intent is highly specific. Intent to commit the enumerated act(s) does not suffice, nor does intent to commit the enumerated act(s) against a particular group. To constitute genocide, there must be intent to commit the enumerated act(s) against a particular group for the purpose of destroying the group in whole or in part. But here, the analysis of state responsibility is less clear. Whose specific intent is attributable to the state? How many people within a state organ must have that intent, and what happens when some people have the intent and others don’t? The rules of state responsibility provide guidance about whose acts are attributable to the state. But do those same rules apply with respect to a mental state in the context of the Genocide Convention? In Bosnia and Herzegovina v. Serbia and Montenegro, the sole case in which the ICJ has made a finding as to state responsibility for the commission genocide, the court concluded that a state (not just an individual) can be responsible for committing (not just failing to prevent) genocide, but held that there was insufficient evidence to prove that commission of genocide had occurred in all but one instance. And the court described the nature of the intent required for the commission of genocide, but did not settle the question of exactly whose intent should count for purposes of state responsibility, because it held that in light of the facts, the state was not responsible for the one instance of genocide.

Decoupling the Genocide Convention’s Act and Intent Requirements

All of this leads to a crucial question: Can one set of individuals whose conduct is attributable to the state provide the acts requirement of the Genocide Convention, and a different set of individuals, whose conduct (or, in this case, mental state) is also attributable to the state, provide the intent requirement? In other words, if a state’s armed forces commit the acts, and the state’s government officials possess the intent, is that genocide?

To return to our hypothetical above: Assume State A’s political leadership possesses genocidal intent. It orders its military to conduct hostilities in the context of an existing armed conflict with an opponent whose population happens to constitute a “a national, ethnical, racial or religious group” as defined by the Genocide Convention. But State A’s political leadership does not inform its military that its (the political leadership’s) goal is to “destroy, in whole or in part” the “group.” Assume for the sake of this hypothetical that no one in the military possesses genocidal intent. State A’s military goes on to conduct hostilities in perfect compliance with IHL. Nonetheless, due to the nature of the conflict, there are significant civilian casualties and mass displacement of civilians, ultimately leading to dire “conditions of life” for those who have been displaced.

Under these hypothetical facts, it seems plausible that the legal definition of a Genocide Convention violation has been met. State A’s political leadership supplied the intent and likely committed genocide as an indirect perpetrator. State A’s military—the entity making IHL decisions—supplied the acts: Here, “killing” under Article II(a), and “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” under Article II(c). (Though as to Article II(c), the intent element of “calculated to bring about its physical destruction” would have to be attributed to the political leadership.)

This hypothetical may be overly simplistic. There may be no realistic set of facts that would support such a stark divide between intent and acts taken pursuant to an IHL analysis, between political leaders’ rhetoric and the consequences of military conduct. But when the question of genocide turns on a state’s responsibility rather than an individual’s, it is not hard to imagine that the evidence presented to a court could reflect this same divide—intent expressed by political leadership; acts committed by the military.

The hypothetical also conjures a perpetual problem in IHL: There is no objective metric for determining what constitutes lawful “military necessity.” Typically, a state’s political leadership is responsible for defining military necessity in the context of an armed conflict; it is a reflection of that leadership’s policy or overall strategic goals. And military necessity is the reference point for determining whether conduct in hostilities is lawful under IHL. For instance, respecting the principle of proportionality requires ensuring that civilian harm is not disproportionate to the military advantage gained, and what constitutes military advantage can only be understood in conjunction with the party’s understanding of military necessity. But what if the definition of military necessity is—unbeknownst to the military that is actually undertaking the IHL analysis for each attack—premised on political leadership’s genocidal intent? Should that render the entire enterprise unlawful under IHL, even if the military respects principles of proportionality, distinction, and precaution? IHL does not provide a clear answer.

Genocide is perhaps the most difficult-to-prove of international crimes. That’s particularly true when it comes to state (rather than individual) responsibility for genocide, which is a relatively undeveloped area of law. By contrast, many courts have had occasion to analyze IHL, militaries around the world have implemented their interpretations into their governing documents, and organizations like the International Committee for the Red Cross provide authoritative statements of customary international law around IHL.

But little has been said about the interplay between genocide and IHL. For what appears to be the first time, Israel may be inviting the ICJ to opine on that very question by raising as a defense to accusations of genocide that it is complying with IHL. Of course, the matter before the court is under the Genocide Convention; it is not the ICJ’s mandate to interpret questions of IHL. Yet there is plenty of precedent for considering compliance with IHL in order to determine compliance with human rights obligations—both in the ICJ’s own past cases, and at human rights bodies such as the European Court on Human Rights, the Inter-American Commission on Human Rights, and the Human Rights Committee. And it seems likely that states will raise the same kind of defense in the future—that they cannot possibly be committing genocide because they are complying with IHL.

But, as a legal matter, that premise is not a given. Will the ICJ weigh in?