Fiji, Hungary, Namibia and the United States on March 12 filed [10] a declaration of intervention to the International Court of Justice (ICJ) in the case [11] against Israel in relation to the situation in the Gaza Strip.
The interventions illuminate the legal issues the court will be facing at trial. One such key issue is what constitutes the mens rea, or the mental threshold, of the crime of genocide. According to Namibia, the court may infer the required genocidal intent based on the scale, systematic nature, intensity, duration, and repetition of the listed acts in Article II of the Genocide Convention [12]. It is also Namibia’s contention that other acts, such as forced displacement, starvation of civilians, and repeated killing of children, are relevant, if not compelling evidence, in the search for the required genocidal intent.
On the other hand, Hungary [13], Fiji [14] and the US [15] asked the court to maintain a high threshold in inferring genocidal intent from the surrounding circumstances. They contended that the court may only rely on such circumstances when the pattern of conduct is so unambiguous that the accused state must have acted with genocidal intent as the "only reasonable inference" drawn from those actions. Hungary argued that the convention drafters intended to narrow the scope of the crime of genocide, such that its exceptional gravity is distinguished from other internationally wrongful acts and breaches of international humanitarian law. Hungary also warned that any attempt to broaden the scope of genocide risks blurring that boundary and opening the floodgates to politicized litigation.
Apart from the mental element, Namibia argued [17] that the crime of genocide can be committed by action or omission, including failing to provide life-sustaining necessities or withholding humanitarian assistance.
Fiji stressed [14] the context of urban warfare. The nation invited the court to consider the deliberate use of civilian infrastructure to maximize civilian casualties by one conflicting party when the other party takes military actions. Fiji warned that if the court decides to include such military actions in the crime of genocide, the inclusion exposes states to genocide charges when they participate in peacekeeping missions, which would otherwise be legitimate but for a terrorist organization’s strategy of using civilian shields or embedding combatants within civilian structures.
Fiji also urged the court not to allocate special probative status to UN reports, arguing that these reports rely on secondary sources that are not necessarily accurate and are not disinterested witnesses. Relatedly, in September 2025, an independent UN commission concluded [18] that the Israeli forces have committed genocide against Palestinian in Gaza.
Earlier this week, the Netherlands [19] and Iceland [20] also filed declarations of intervention. The Netherlands invited the court to appropriately lower the threshold for "serious bodily or mental harm" when the victim is a child. Iceland warned that the “only reasonable inference” criterion should not render inferring genocidal intent effectively impossible.
The court has invited South Africa and Israel to file written observations following these submissions.
From JURIST [21], March 14. Used with permission.
See our last reports on the ICJ case [22] and genocide accusations [23] against Israel.
