The hearings revealed, within the solemnity of the Peace Palace, a sequence of violence of extreme brutality. Lawyers for The Gambia described what they characterize as an ethnic cleansing operation conducted by the Burmese army in the summer of 2017, officially presented as retaliation for attacks by the Arakan Rohingya Salvation Army. The Burmese defense invokes a counterterrorism operation. Yet the prosecution insists on the very nature of the acts themselves. Beheadings, mutilations, infants torn from their mothers’ arms and thrown into flames, systematic gang rapes committed before families and communities, the destruction of villages and the mass expulsion of the population. These facts are not portrayed as isolated excesses, but as repeated, coordinated practices carried out by different units operating under a common command.
INTENT
At the heart of these proceedings lies the central and most difficult concept to establish in the law of genocide: intent. Genocide is not defined by the numerical scale of deaths, but by the specific intent to destroy, in whole or in part, a protected group as such. This intent is almost never expressed explicitly by its perpetrators. It is inferred from context, duration, policy coherence, and modes of operation. In the Burmese case, lawyers for The Gambia argue that genocidal intent emerges from the convergence of several elements. Massive sexual violence against women and girls, mutilations targeting reproductive organs, induced miscarriages, psychological trauma designed to discourage marriage and procreation. Added to this is the methodical destruction of Rohingya social structures and a campaign of dehumanization propagated by state media and senior political leaders, portraying the Rohingya as an existential threat to be eliminated.
This demonstration unfolds over the long term. For decades, the Burmese state constructed a legal and administrative system of exclusion: deprivation of citizenship, restrictions on movement, control of marriages and births, territorial segregation, progressive confinement. The violence of 2017 thus appears not as a rupture, but as the logical culmination of an already legible state project. It is this continuity that forms the backbone of the Rohingya case and makes it one of the most structurally developed genocide cases ever examined by the International Court of Justice.
If this case is being watched with such intensity today, it is also because it is perceived as a precedent for other contemporary accusations, particularly those concerning Israel and Gaza. Here again, the law demands a rigorous distinction. The accusations against Israel arise in a profoundly different context: that of a long-standing, asymmetric armed conflict involving a non-state armed actor, Hamas, and marked by repeated cycles of war. Proponents of the genocide qualification point to the scale of destruction, the very high number of civilian victims, the mass displacement of populations, the collapse of vital infrastructure, and certain political statements interpreted as dehumanizing.
ISRAEL
Opposing arguments, however, emphasize the absence of an Israeli state system aimed at destroying the legal or biological existence of Palestinians as a group. Unlike the Burmese case, there is no policy of denationalization of Gaza’s Palestinians, no prohibition of births or marriages, and no structured administrative apparatus designed to render the group’s long-term existence impossible. Israel invokes military and security objectives, which does not negate the gravity of civilian suffering nor the potential qualification of war crimes or crimes against humanity, but renders the demonstration of genocidal intent legally more complex and fiercely contested.
This distinction recalls a fundamental truth of international law. Genocide is a crime of intent before it is a crime of outcome. Judges do not rule on the basis of emotion or the horror of facts alone, but on the capacity to demonstrate a specific will to destroy a group as such. It is precisely this requirement that explains the rarity of genocide convictions and the length of judicial proceedings.
In this respect, the example of Serbia constitutes an essential reference point. In 2007, the International Court of Justice did not condemn Serbia for planning or executing the genocide at Srebrenica, but for failing to prevent it and to punish its perpetrators. That judgment established that a state’s responsibility may be engaged without direct participation in the commission of the crime and demonstrated how the legal qualification of genocide rests on a precise analysis, distinct from political or moral judgments.
A clarification is therefore necessary. In international law, the legal recognition of genocide belongs neither to governments, nor to parliaments, nor to the media, nor to public opinion, regardless of the legitimacy of moral outrage. This authority rests exclusively with international judicial bodies. Only the International Court of Justice, with respect to state responsibility, and the International Criminal Court, with respect to the criminal responsibility of individuals, possess the internationally recognized right to legally qualify genocide.
The Rohingya case illustrates how slow, demanding, and strictly regulated such recognition is. The Gaza file now unfolds within this same judicial temporality, without its outcome being foreseeable. The Serbian experience likewise shows that international law rarely advances at the pace of emotion or politics, but according to its own logic, often frustrating, always heavy with consequences.
In the face of these realities, one imperative remains. To name facts with precision, to refuse hasty analogies and words used as weapons. As Albert Camus wrote, “to misname things is to add to the misery of the world.”
*Author is a former member of the UN senior staff