Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel): Belgium files a declaration of intervention in the proceedings under Article 63 of the Statute of the Court

41, First, in certain cases, the same act (for example, murder) can constitute both a crime of genocide and a serious violation of international humanitarian law, that is, a war crime. This dual classification is perfectly conceivable in law and frequent in practice, provided that the various constituent elements of each of the two crimes—including, in the case of the crime of genocide, genocidal intent—are present.

42. Second, since the rules governing armed conflict and the crime of genocide are distinct and autonomous, the conformity of certain acts with international humanitarian law does not preclude these same acts from constituting, where applicable, a violation of the Convention. In its aforementioned 2007 judgment, the Court thus rejected the defendant’s argument that the deportations or expulsions in question did not constitute the crime of genocide because they were justified under international humanitarian law. The Court emphasized that “such justification could not be accepted if specific intent (dolus specialis) were proven.” Similarly, and a fortiori, considerations based on the mere perception or designation by a belligerent of members of a protected group as “enemies,” as a “threat,” or as supporters of the opposing party in the context of an armed conflict, cannot suffice to exclude genocidal intent.⁵¹

… 44. This is not to say that no factual link can be established between the two legal regimes. In particular, the fact that no military objective can reasonably be put forward to support certain acts, or that said acts constitute, in any event, violations of international humanitarian law, can contribute to revealing genocidal intent. In this sense, the Court has held that the fact that attacks caused “far more casualties and damage than was necessary from a military point of view” is among “the most important criteria” for establishing the existence of a course of action reflecting genocidal intent. Similarly, to establish genocidal intent in connection with the Srebrenica massacre, the International Criminal Tribunal for the former Yugoslavia noted, in particular, that the acts in question that “no attempt, even a purely formal one, was made to distinguish civilians from soldiers,” and furthermore, Belgium fully subscribes to this jurisprudence and, in particular, to the finding that acts against children or other vulnerable persons, or acts that fail to distinguish them from persons likely to
constitute a threat during armed conflict, can especially contribute to revealing genocidal intent.⁴