By Robbert van de Bovenkamp, Junior Fellow
On March 11, 2026, the Netherlands availed itself of the right to intervene as non-party in the proceedings brought by South Africa against Israel under the Genocide Convention.
In its Declaration of Intervention (hereafter: Declaration), the Netherlands also reserved its right to supplement or amend the Declaration with associated Written Observations in the subsequent proceedings.
In the Declaration, the Netherlands urges the Court to take an approach consistent with and based upon the Joint Declaration of Intervention of 15 November 2023 submitted by the Netherlands, together with Canada, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, and the United Kingdom of Great Britain and Northern Ireland, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).
In this Note I will make some comments on the Joint Declaration, and compare the Declaration by the Netherlands with Declarations made by some other states.
Specific intent
Central to the definition of genocide in the Genocide Convention is the requirement of ‘specific intent’. In view of the Netherlands, the construction of the Convention in relation to the requirement of specific intent requires a “comprehensive and holistic” approach to the available evidence. The Netherlands enumerates three points that – in its view – the Court should consider as playing a role in determining specific intent.
Forced displacement
The first observation the Netherlands has made is that forced displacement of civilians may lead to or inflict serious mental or bodily harm as prohibited by Article II(b) of the Genocide Convention. Subsequently, it argues that forced displacement may lead or amount to the infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part in the sense of Article II(c) of the Genocide Convention, which covers methods of physical destruction other than killing. And thirdly, in addition to leading or amounting to the underlying acts of genocide, forced displacement may also constitute evidence of specific intent.
In the Joint Declaration made in The Gambia v. Myanmar case, we find some further elaboration on this last point of forced displacement in relation to specific intent. Here, it is argued that forced displacement may also constitute evidence of specific intent and this may be so even in cases where affected members of the group are not transferred to a place where they are subjected to conditions leading to their death or destruction. The argument made in the Joint Declaration is that acts of ‘ethnic cleansing’ may occur in parallel to acts prohibited by Article II of the Genocide Convention and may be significant as indicative of the presence of a specific intent (dolus specious) inspiring those acts. Furthermore, the Joint Declaration expresses the view that “the violent military operation triggering the forced displacement of members of a targeted group may similarly contribute to evidence of a specific intent to destroy the protected group, regardless of whether the acts triggering the forced displacement fall within one of the five categories of underlying acts of genocide.”
Acts committed against children
In the second place, the Netherlands submit that the targeting of children is relevant to the determination of specific intent. In the view of the Netherlands, in assessing whether a specific act constitutes an underlying act of genocide, the particular impact on children must be taken into account and acts committed against and/or the targeting of children is relevant for the determination of specific intent. From the standpoint of the Netherlands, the targeting of children as such may present evidence of genocidal intent and is, accordingly, relevant to the determination of the specific intent of genocide and to a proper construction of what it means to intend to destroy a group in whole or in part.
In the Joint Declaration to The Gambia v. Myanmar case we find further thoughts on this submission. First, in view of the Declarants, the targeting of children may assist in demonstrating that the members of the group were targeted because of their membership of the protected group. Secondly, the finding of genocide requires that the intent was to destroy “at least a substantial part of the particular group.” The Declarants submit that children form a substantial part of the groups protected by the Genocide Convention, and that the targeting of children provides an indication of the intention to destroy a group as such, at least in part. Thirdly, given the significance of children to the survival of all groups, evidence of harm to children may contribute to an inference that the perpetrators intended to destroy a substantial part of the protected group.
Starvation and the deliberate withholding of humanitarian aid
As a third submission, The Netherlands argues that in construing the specific intent requirement in Article II of the Genocide Convention, the Court should take account of starvation or the deliberate withholding of humanitarian aid for the purpose of establishing specific intent – in particular when this occurs on the basis of a concerted plan of a consistent pattern of conduct.
With regard to acts that may amount to the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part under Article II(c) of the Genocide Convention, the Netherlands argues that such acts are not limited to methods of destruction that would immediately cause the death of members of the group, but rather that such acts must be calculated to bring about their eventual physical destruction. In view of the Netherlands, this does not require the actual physical destruction to have occurred, but rather that the conditions were ‘calculated’ to bring about such destruction.
Problems with the Dutch approach
As is shown, the Netherlands have submitted that forced displacement, acts committed against children, and starvation and the deliberate withholding of humanitarian aid can play an important role in determining specific intent. However, this submission raises the question whether these extra elements lower the standard for inferring intent. As is contended by the United States in its Declaration of Intervention “lowering the standard risks broadening the application of the term “genocide” such that it no longer carries its original weight and meaning, and invites attempts to misuse the Genocide Convention as a gateway for bringing extraneous disputes before the Court.”
The risk of the Dutch submission is that the applicable standard no longer demands that the perpetrator acted with genocidal intent. In this regard it is relevant to point at what the Court has held previously. It has held that “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive,” and the Court must be “fully convinced” that allegations of the crime of genocide have been committed.
When specific intent must be inferred from perpetrators’ conduct the Court requires that:
“The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such it could only point to the existence of such intent.”[1]
Comparison with other Interventions
The Dutch Declaration is in start contrast with the Declaration of Intervention by Paraguay. Paraguay is of the view that the scope of the crime of genocide must be approached with special restraint, and that recent attempts to broaden the definition of genocide risk diluting the specific normative function of the Convention, blurring its boundaries with other international obligations, and eventually undermining the treaty framework.
Paraguay therefore considers there is no legal or normative basis for accommodating expansive interpretations of the elements of genocide. Accordingly, in view of Paraguay, while violations of international humanitarian law may trigger responsibility under that body of law and can constitute serious international crimes, they do not, however, in and of themselves evidence specific intent under the Genocide Convention. Expanding the Convention’s scope to encompass other breaches of international law, including conduct that may constitute serious violations of international law subject to distinct legal regimes, would risk diluting the Convention’s normative framework, weaking the singular gravity of genocide and blurring the line between genocide and other forms of mass atrocity or collective harm.
Next, Paraguay argues that the established jurisprudence regarding the threshold of intent and the strict standard required under the Genocide Convention should not be departed from. As for the dolus generalis, or general intent, Paraguay argues that any attempt to equate operational or security motives with genocidal intent constitutes a mischaracterization of the crime of genocide. According to Paraguay this would risk criminalizing legitimate military actions or conflating law conduct with genocidal intent. In this regard, it is important to emphasize that incidental harm, collateral consequences of military operations or restrictions imposed for legitimate security or operational reasons do not, by themselves, satisfy or indicate the existence of general intent.
Paraguay further argues that dolus specialis must be inferred only where the evidence leads to only one reasonable conclusion – that the perpetrator intended to destroy, in whole or in part, a protected group. In this regard Paraguay refers to the Court’s ruling in Croatia v. Serbia where the Court emphasizes that “in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question.”[2]
It is important to note that while the Dutch Declaration urges the Court to look widely at evidence that may support intent to commit genocide, it does not address elements that may rebut genocidal intent. In view of the United States, efforts to comply with the law of armed conflict with respect to the protection of civilians, as well as other efforts to avoid or mitigate civilian harm, should be taken into account as evidence that genocide is not a reasonable inference from the conduct in question. For example, taking prisoners of war who are members of the protected group, as well as allowing the release or exchange of such prisoners, may rebut genocidal intent.
Similarly, Fiji’s Intervention urges the court to consider that evidence of intention to comply with international humanitarian law rebuts an intention to commit genocide.
[1] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. Reports 43, pp. 196-97, ¶ 373 (emphasis added). In Croatia v. Serbia, the Court noted this finding “now must be regarded as solidly rooted in its jurisprudence.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 2015 I.C.J. Reports 3, p. 150, ¶ 510.
[2] Application on the Concention of the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment, I.C.J. Reports 2015, p. 68 para 148.
