Dr Andrew Forde

On 11 December, Tánaiste and Minister for Foreign Affairs Micheál Martin announced Ireland’s intention to intervene in the case of South Africa v Israel and in the case of The Gambia v Myanmar at the International Court of Justice (ICJ) under the Genocide Convention.

The Tánaiste noted that Ireland will argue for a broadening of the Court’s interpretation of what constitutes the commission of genocide by a State, expressing concern “that a very narrow interpretation of what constitutes genocide leads to a culture of impunity in which the protection of civilians is minimised”.

The definition of genocide includes two main components: 1) the physical acts designed to destroy a group in whole or in part, and 2) the dolus specialis, the intent.

To constitute genocide, the intent of committing genocide must be the only reasonable inference that can be drawn from the facts, which represents an extraordinarily high threshold.

Ireland’s decision to intervene triggered an angry reaction from Israel, first with the announcement of the closure of the Israeli Embassy in Dublin over what the Israeli Ambassador described as an “extreme anti-Israeli policy” unlike any other country, and shortly afterwards Israel’s Minister for Foreign Affairs accused the Taoiseach of antisemitism.

But is the intervention actually “hostile” to Israel, and what does Ireland hope to achieve by intervening?

Ireland and the Israeli-Palestinian conflict

Ireland has a long history of engagement in the conflict in the Middle East politically and through development and peace-keeping engagement in the region. The Palestinian cause also looms large in public opinion, with polls suggesting that the overwhelming majority of people in Ireland agree that Palestinian people live under a system of apartheid implemented against them by Israel.

Since the joint declaration by the Foreign Ministers of Ireland and Bahrain in 1980, the Government of Ireland has consistently stressed that any sustainable solution to the conflict had to be based on a fully sovereign Palestinian State, independent of and co-existing with Israel.

Consistent with this long-standing position, Ireland formally recognised the State of Palestine on 28 May 2024 to “protect the viability of a two-State solution and the equal rights of Palestinians and Israelis to self-determination, peace, security and dignity”. The Taoiseach acknowledged, though, that recognition would not resolve the conflict in itself. Emphasising the onus on every country to use every lever at their disposal to bring about a ceasefire, the Taoiseach stated “it is no longer enough just to condemn or be repulsed”.

An interim order by the International Court of Justice in May which required Israel to “immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part” marked a decisive turning point in Ireland’s international legal strategy. It paved the way for Ireland’s decision to intervene in the South Africa v Israel case last week, something which had been considered at political and official levels for months.

Ireland’s approach appears to have been cautious and prudent, largely following the lead of its international partners and courts. This approach was most evident following the ICJ Advisory Opinion of 19 July 2024 which obliged states not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory, thereby effectively unlocking the long-awaited Occupied Territories Bill.

Hostility or legal necessity? 

Ireland became a party to the Genocide Convention in 1976 which gives rise to clear and binding legal duties on Ireland not only to not commit genocide but also to actively prevent genocide. The International Court of Justice clarified that this means states should “employ all means reasonably available to them, so as to prevent genocide so far as possible.” This obviously includes using the full rigours of the international legal system as a both a deterrent and accountability framework.

Pursuant to Article 63 of the Statute of the International Court of Justice, states party to a convention have the right to intervene in proceedings that concern the construction of that convention. This provides Ireland the basis to seek to intervene, as it had done previously in the ICJ case taken by Ukraine against the Russian Federation under the Genocide Convention.

Such an intervention serves several purposes. On the one hand, it increases the political pressure on a state suspected of carrying out atrocity crimes, focussing international attention and amplifying core political messages. But an intervention before the ICJ is a high-stakes, resource-intensive effort for something that is unlikely to be effective in actually stopping a war, so political pressure alone has certainly not inspired this intervention.

The far more convincing purpose of such an intervention is to seek to progressively develop international law itself, especially when matters of collective or common interest and collective guarantee are at stake. Ireland is acutely aware of its own obligations and the opportunity that such an intervention has to shape and influence international law. Far be it from being a hostile act, the decision to intervene is not only consistent with Ireland’s foreign policy position but it represents an exercise of Ireland’s international legal duties as a party to the Genocide Convention.

What Ireland hopes to achieve?

International law exists in a political ecosystem, and exercising it serves both legal and political purposes. Ireland has tirelessly advocated for a peaceful solution to the Israel-Palestine conflict and has done so through political, diplomatic and legal means, and the decision to intervene in the case of South Africa v Israel is just one dimension of these broader efforts.

Given that the legal proceedings in the case of The Gambia v Myanmar are significantly further advanced and an outcome in that case will be highly persuasive for South Africa v Israel, it was natural that Ireland would also seek to influence the Court’s reasoning in that case, hence two interventions rather than one. But will Ireland’s intervention be successful? Well, this depends on the content of Ireland’s submission, which is not yet entirely clear.

The threshold to invoke “genocide” is absurdly high, therefore broadening of the definition of genocide is a matter of strategic legal importance. It is not, however, without its risks. Set against the backdrop of deeply fractured international community and weakened rules-based international order, is it realistic to expect the Court to take the bold step of expanding the definition of genocide and, in so doing, further alienate major players such as the United States, India, China and others? It seems highly unlikely.

Perhaps more importantly, broadening the definition is not an essential element for the Court to plausibly find that Israel has breached the Genocide Convention. There are more than sufficient grounds for the ICJ to make a finding in favour of South Africa based on Israel’s duty to prevent. In addition to its stated focus on the expansion of the definition of genocide, Ireland could helpfully articulate the scope of the duty to prevent including the role of states in monitoring early warning signs and risk factors, and acting in accordance with the duty to prevent in good faith. 

Conclusion

Hamas and other terrorist groups committed brutal, indiscriminate and systematic attacks on civilians in Israel on 7 October 2023, resulting in over 1,200 deaths. Ireland has consistently condemned these heinous crimes. However, since then Israel has responded in a disproportionate manner with apparently scant regard for international humanitarian law.

Official figures currently indicate that 45,000 people have been killed by Israel, 70 per cent of whom are women and children. A staggering 17,000 children have been officially recorded as killed, with thousands more missing or lying under rubble. The situation in Gaza is truly catastrophic. Attempts to label those who speak out about this horror as “antisemitic” is a hideous fallacy and deeply offensive.

Ireland is currently experiencing a diplomatic storm from Israel, and one that is unlikely to subside anytime soon given that the new Dáil must pick back up the Occupied Territories Bill in 2025.

However, the inescapable fact is that Ireland is not only acting consistent with long-standing Irish foreign policy and domestic public opinion, the decision to intervene in the cases of South Africa v Israel and The Gambia v Myanmar at the International Court of Justice represents an exercise of Ireland’s own duty to prevent under the Genocide Convention.

Ireland must be applauded for seizing the opportunity to influence the jurisprudence of the ICJ which has been historically restrictive, to the detriment of those affected by the variety of crimes which constitute or lead to genocide. However, much of Ireland’s influence will depend on the legal levers it chooses to deploy.

A singular focus on broadening the definition of genocide, whilst entirely legitimate and welcome, is a risky endeavour. A finding of genocide in the cases currently before the court does not depend on a broadening of the interpretation of what constitutes genocide, but rather a robust articulation of Israel’s egregious failure to prevent it.

Dr Andrew Forde is an assistant professor in international law and human rights at Dublin City University and a commissioner on the Irish Human Rights and Equality Commission. Over his distinguished career, he has been an advisor to the Council of Europe’s commissioner for human rights and a senior official in the Irish government for six years. His first book, European Human Rights Grey Zones: The Council of Europe and Areas of Conflict, was published in April 2024 by Cambridge University Press. He is co-author of Russia, the Council of Europe and the European Convention on Human Rights – A Troubled Membership and Its Legacy, due for publication by Bristol University Press early in 2025. This article first appeared in Irish Legal News.