The ICJ's Erroneous Standard for Proof of Genocide
BEYOND ONLY INTENT
By Dr. Gregory Stanton and the Genocide Watch Legal Team: Fitry Hamidah, Htet Htet Hliang, Anita Lesniak, Maximilian Millington, Emma Op het Veld, Tami Tasaki, Aymen Zehra, Natalie Kasper, and Omar Kausar
November 13, 2026
Executive Summary
The International Court of Justice has never held that a state has directly violated the Genocide Convention. The ICJ adopted an erroneous standard to prove intent in the only genocide cases it has tried, Bosnia and Herzegovina v. Serbia and Montenegro (2007) and Croatia v. Serbia (2015).
In both cases, The ICJ ruled that genocide must be the ONLY INTENT of a state for the ICJ to hold that genocide was conclusively proven.
Because Serbia’s intent in both cases included “ethnic cleansing” (forced displacement), genocide was not Serbia’s ONLY INTENT. Therefore, the ICJ ruled that it could not hold that Serbia’s intent to commit genocide was conclusively proven. Serbia was not found to have violated the Genocide Convention.
The Genocide Convention does not require that intent to destroy a protected group must be the ONLY INTENT of a state. It is time to correct this error of law made in the ICJ’s Bosnia and Croatia cases.
If this fundamental error of law is not corrected, the Genocide Convention will be unenforceable against states in all future cases.
The ONLY INTENT doctrine and the ‘Only Reasonable Inference’ test must not defeat the Circumstantial Inference of Genocidal Intent in The Gambia v Myanmar case at the International Court of Justice.
Introduction
Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), requires a determination that acts of genocide are committed by an individual or a state with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.
Unlike other international crimes, the occurrence of one or more of the prohibited acts of genocide is not enough to prove commission of the crime of genocide. A disputing state accusing another state of violating the Genocide Convention must also prove that such acts were committed with the specific intent (dolus specialis) to destroy a protected group.
Since evidence of genocidal intent is often not explicit in clear statements by an individual or the leaders of a state, the ICTY, ICTR, and other international courts have recognized that intent to destroy a particular group may be inferred from patterns of conduct and the surrounding circumstances of actions. In analogous criminal law, such an inference may be proven by “circumstantial” evidence.
In Bosnia and Herzegovina v. Serbia and Montenegro (2007), the International Court of Justice (ICJ) held that, when genocidal intent is inferred from a pattern of conduct, the intent to destroy a group in whole or in part must be the ONLY reasonable inference that can be drawn from the evidence. This doctrine has come to be known as the ONLY INTENT test.
The Court repeated this test of intent in Croatia v. Serbia (2015). The ONLY INTENT doctrine sets a very high evidentiary threshold, making it almost impossible to prove genocidal intent to destroy a specific group. Especially for states, such specific intent usually coexists with military, political, or territorial intents.
The ONLY INTENT doctrine raises a crucial question: should the existence of another reasonable intent by a state automatically rule out genocidal intent?
This article argues that the ICJ’s “only reasonable inference” approach should be reconsidered and modified in its judgment in the Gambia v. Myanmar case. The court should correct its rulings in the Bosnia and Croatia cases and hold that genocidal intent, intent to destroy a national, ethnic, racial, or religious group, in whole or in part, can be conclusively proven even though it coexists with other intents.
II. What is the ‘only reasonable inference’ standard?
To understand the ‘only reasonable inference’ standard, it is necessary to look at the laws of evidence in proving genocidal intent. The ICTR and ICTY only tried individuals, not states. These courts characterized the specific intent for genocide as “the conscious desire to achieve the destruction of the targeted group through the commission of the prohibited acts” (Akayesu, paras. 544-547; Kupreškić, para. 636). The destruction of the targeted group, in whole or in part, concerns the intent with which the prohibited acts are committed, not the actual outcome of those acts (Krstić, para. 584).
Establishing specific intent to destroy a group presents considerable evidentiary challenges. Direct evidence or explicit manifestations of genocidal intent are rarely available. The ICTY Appeals Chamber in Krstić recognized that the perpetrator may be prevented from putting a genocidal plan “into action in the most direct and efficient way” due to international attention and instead be forced to adopt “the method which would allow them to implement the genocidal design while minimizing the risk of retribution.” (Krstić Appeals, para. 32).
Accordingly, the ICTR and ICTY accepted that the intent may be inferred from the context, scale, systematic targeting and surrounding circumstances of actions (Akayesu, para. 523; Jelisić Appeals, para. 47; Rutaganda Appeals, para. 525). The ICTY in Tolimir recognized that genocidal intent may be inferred from circumstantial evidence (Tolimir, para. 745).
In Bosnia v. Serbia,the International Court of Justice (ICJ) accepted that dolus specialis may be inferred through circumstantial evidence, but it set a demanding threshold. In Bosnia v. Serbia, the Court held that, “for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent” (Bosnia, para. 373, emphasis added).
The ICJ’s stated rationale was that allegations of exceptional gravity against a State must be established by evidence that is “fully conclusive” (Bosnia, para. 209). A policy of “ethnic cleansing”, and the operations to implement it, cannot as such be conclusively proven to amount to intent to commit genocide.” (Bosnia, para. 190).
By requiring a “fully conclusive” standard of proof, the ICJ imposed a standard normally only required in criminal trials: proof beyond a reasonable doubt. This standard had never been applied in the ICJ before Bosnia v. Serbia.
The ICJ is not a criminal court. It is a court that decides disputes between states. In all its other cases, it used the usual standard of proof in civil cases: the preponderance of the evidence.
In Bosnia v. Serbia, for the massacre of over 8000 men and boys in Srebrenica, the ICJ relied on ICTY judgments which stated that the systematic execution of Bosnian Muslim males and the decision of the Bosnian Serb leadership to destroy the Srebrenica community (Bosnia, paras. 290–297; Krstić Appeals, paras. 25–37) were proof of genocidal intent. Intent was established by evidence of a command-level decision as well as by the pattern of conduct of Bosnian Serb troops.
For killings outside Srebrenica, the ICJ was not convinced that intent to destroy was conclusively proven, because the conduct of Serbia was also consistent with the intent of “ethnic cleansing” (Bosnia, paras. 276–277, paras. 370–376), the crime against humanity of forced displacement of a group out of the territory it occupied.
[It is telling that the ICJ used “ethnic cleansing”, the euphemism invented by the Milošević regime itself to deny it was committing genocide. By 2007, the ICTY had obtained the records of the Serbian central command in Belgrade that proved a pattern of intentional genocidal conduct by Serbia. In 2007, Dr. Gregory Stanton, President of the International Association of Genocide Scholars (IAGS), at an IAGS meeting in Sarajevo, asked the Prosecutor at the ICTY, Carla Del Ponte why, knowing that the ICJ was considering Bosnia v Serbia, she did not take these records across town in the Hague to the ICJ. She replied, “Because they didn’t ask.”]
In Croatia v. Serbia, the Court reaffirmed that genocidal intent must be “the only reasonable inference which can be drawn from the pattern of conduct” (para. 148). The ICJ noted that “the intent to destroy a national, ethnic, racial or religious group as such is specific to genocide.”
Because destruction of a group, in whole or in part, is the intent required to prove genocide, isolated acts without a proven pattern are not sufficient to prove genocidal intent. In the absence of such direct proof, the ICJ required evidence of a pattern of conduct or acts on a scale that “establishes an intent not only to target certain individuals because of their membership in a particular group, but also to destroy the group itself in whole or in part.” (Croatia, para. 139 and 148).
Applying this reasoning, the ICJ accepted the fact that prohibited acts under Article II of the Genocide Convention had occurred. However, the ICJ held that such acts were also consistent with the alternative intent to “ethnically cleanse” (forcibly displace) Bosnians and Croats from territory they lived in. “Ethnic cleansing” is a euphemism for forced displacement. The goal of the Bosnian Serb forces was to create a Serb-dominated territory that could reunite with Serbia.
The ICJ similarly held that intent to destroy was not the ONLY reasonable inference (Croatia v. Serbia, paras. 425–430) of acts by Serb forces and Serbia. Therefore, Serbia’s intent to commit genocide had not been conclusively proven.
While both the ICJ and the international criminal tribunals have relied on the ‘reasonable inference’ approach, they have applied it dramatically differently. In determining individual intent, the ICTY, ICTR, ECCC, ICC and other international criminal tribunals have applied the reasonable-inference rule to individuals as part of the proof beyond a reasonable doubt that they committed genocide. But these tribunals have never insisted that genocide be the ONLY INTENT of the defendants.
In trials of individuals at these international tribunals, the defendant was often charged with several crimes requiring different intents. Defendants have been convicted of both crimes against humanity and genocide in the same trials.
In contrast, the ICJ has judged the intent of states, using a “fully conclusive” standard of proof, to determine whether intent to destroy a protected group was the ONLY INTENT of the state charged with violating the Genocide Convention. That standard to prove intent led the ICJ to rule in both Bosnia v. Serbia and Croatia v. Serbia that there was insufficient proof that Serbia had violated the Genocide Convention.
In Bosnia v. Serbia and Croatia v. Serbia, the ICJ ruled that although Serbia may have aided and abetted or been complicit in the crime against humanity of forced displacement (“ethnic cleansing”), genocide was not Serbia’s ONLY INTENT. Therefore, Serbia could not be found responsible for committing genocide.
Viewed in the context of State responsibility, the ONLY INTENT test makes the Genocide Convention unenforceable against States.
States always have more than one intent for their actions. They have multiple leaders and many policies. States also do not have “minds”, making analogies to “mens rea” inapplicable.
The implications of the ONLY INTENT test will become apparent in the ICJ's subsequent cases. In Gambia v. Myanmar and Ukraine v. Russia, application of the ONLY INTENT test will doom plaintiffs to defeat.
Across the cases, although the actus reus may be established, genocidal intent can be found only where evidence tied it to statements or documented policies of a decision-making authority. Otherwise, forced displacement or “ethnic cleansing” will be an alternative inference that defeats genocidal intent.
Although the ICJ in Bosnia and Croatia did not expressly hold these alternative intents to be legally incompatible with genocidal intent, the ICJ’s application of the ONLY INTENT test treated them as mutually exclusive.
III. Can genocidal intent coexist with other intentions?
The question is whether the ICJ can modify its rulings in those cases to clarify that an additional alternate inference of intent based on the same conduct can coexist with conclusive proof of genocidal intent.
The ‘only reasonable inference’ standard overlooks the case law in international jurisprudence that acknowledges that genocidal intent can coexist with other intents. The ICJ clarified that “the specific intent is also to be distinguished from other reasons or motives the perpetrator may have.” (Bosnia v. Serbia, para.189). This point had already been highlighted in previous judgements (Kayishema and Ruzindana, para. 161; Blaškić, para.694).
The international tribunals have pointed out that intent should not be confused with motive. In Jelisić, the Appeals Chamber held that “the personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide” (para.49; see also Krnojelac, para.102).
Similarly, in Karera the Trial Chamber confirmed that the accused does not need to be “solely motivated by a genocidal intent and having a personal motive will not preclude such a specific intent” (para.534). The motive and genocidal intent can coexist, and often other motives are used by the perpetrator to obscure the genocidal intent.
The coexistence of military objectives and genocidal intent is a frequent example of a “parallel intent”, since genocide is often committed during armed conflict. Article I of the Genocide Convention prohibits genocide “whether committed in time of peace or in time of war.”
In Akayesu, the Trial Chamber confirmed that genocide can occur during an armed conflict, and it elaborated that “the execution of this genocide was probably facilitated by the conflict” by using the conflict “as a pretext for the propaganda inciting genocide against the Tutsi” (para.127).
Srebrenica illustrates both “instrumental” and “overlapping” intent. Even if the initial intents were both military conquest and forced displacement, genocide was “part of the means to achieve the objective” of clearing the territory of its Bosnian Muslim population (Mladić, para.4987; see also Krstić Trial, para.572).
“Overlapping intent” arises where the same acts serve both genocidal and other objectives. Bosnian Serb troops killing Bosnian Muslim fighters served a military objective. Yet Bosnian Serb forces went further and killed almost all ‘military-age’ men and boys in Srebrenica, most of whom were civilians.
The Appeals Chamber in Krstić (para. 26) and the ICJ (Bosnia v. Serbia, para. 292) found that this course of action could only be explained as intended to destroy part of a national, ethnic, and religious group. Thus, international jurisprudence clearly recognizes that genocidal intent can coexist with other intents. Their simultaneous co-existence does not rule out genocidal intent.
IV. The ‘only reasonable inference’ standard must not exclude multiple intents.
If the ‘only reasonable inference’ standard is interpreted to require that genocidal intent be the exclusive plausible explanation for a particular pattern of conduct, establishing such intent would become nearly impossible. The available evidence will nearly always support multiple reasonable inferences rather than solely point to genocidal intent.
Proof of genocidal intent requires the Court to assess competing explanations for conduct. The existence of another intent does not establish that the specific intent required for genocide was absent.
A political objective may explain the broader purpose of a military operation without resolving whether the military forces also intended to destroy a protected group, in whole or in part. The relevant inquiry is whether the evidence supporting the alternative explanation genuinely excludes genocidal intent, rather than whether an other intent precludes intent to commit genocide.
In The Gambia v. Myanmar, Myanmar’s characterization of its operations in Rakhine State as security measures raises precisely this question: whether a counter-insurgency objective can, by itself, exclude an inference of genocidal intent.
In its written observations in the same proceedings, Belgium argues that the pursuit of a military objective is not sufficient to preclude the identification of genocidal intent. The Court must therefore assess any alternative explanation against evidence of intentional group destruction, including the pattern of conduct directed at the protected group, rather than treating the existence of a security objective as decisive of the question of specific intent.
Most allegations of genocide have arisen within the context of an armed conflict, as evidenced by the recent institution of proceedings at the ICJ (South Africa v. Israel; The Gambia v. Myanmar; Ukraine v. Russian Federation). If genocidal intent can never coexist with another reasonably inferred intent, situations involving complex armed conflicts will systematically fail to satisfy proof of accompanying genocide.
This outcome is not merely problematic for enforcement. It is also directly at odds with the history and purpose of the Genocide Convention, which seeks to prevent and punish the crime of genocide.
Interpreting the ‘only reasonable inference’ test to mean that the existence of other intents automatically precludes a finding of genocidal intent, will ultimately facilitate State impunity for committing a crime that constitutes one of the gravest threats against humanity.
Following the ONLY INTENT doctrine announced by the ICJ in its Bosnia and Croatia cases will lead to the destruction of the enforceability of the Genocide Convention against its Contracting Parties, weakening States’ accountability for their role in the commission of genocide (Dissenting Opinion Judge Cançado Trindade, para. 144 & 467).
V. Developing jurisprudence in Gambia v. Myanmar
The International Court of Justice has announced that it will deliver its judgement in The Gambia v. Myanmar on 19 November 2026.
The ‘only reasonable inference’ standard and the ONLY INTENT doctrine are at the heart of this case.
The Gambia alleges that Myanmar violated the Genocide Convention by committing acts of genocide against the Rohingya and by failing to prevent and punish genocide. Its case relies substantially on the 444 page detailed report of the UN Independent International Fact-Finding Mission on Myanmar (FFM), which identified seven indicators from which an intent to destroy the Rohingya, in whole or in part, could reasonably be inferred (The Gambia’s Memorial, para. 4.50).
These included “the Myanmar Army’s [Tatmadaw’s] extreme brutality”, “the organized nature”, “the enormity and nature of the sexual violence”, “racist and exclusionary utterances”, “discriminatory plans and policies”, “tolerance for public rhetoric of hatred and contempt”, and “failure to investigate and prosecute gross violations” of international law (FFM Report, 2019, para 224). The Gambia argues that, taken cumulatively, this pattern of conduct supports the inference that Myanmar acted with the intent to destroy the Rohingya group, in whole or in part, as such (The Gambia’s Memorial, para. 12.104).
Myanmar, in rebuttal, maintains that the alleged genocidal acts occurred during counter-terrorism operations directed against the Arakan Rohingya Salvation Army (ARSA) and its supporters. ARSA’s attacks threatened Myanmar’s civilians and national security (Myanmar’s Counter-Memorial, paras. 8.12, 13.96). Myanmar argues that these alternative explanations prevent genocidal intent from being the only reasonable inference that can be drawn from its actions. (paras. 13.76-13.79).
As discussed above, international jurisprudence recognizes that genocidal intent may coexist with other intents. The intervening Republic of Ireland expressly highlights this distinction, observing that “[t]hat the pattern of conduct could only point to the existence of such intent is not to say that it could point to such intent only” (Declaration of Intervention by Ireland, para. 36).
The Joint Intervening States further emphasize that alternative explanations must be reasonable and that the evidence must be assessed as a whole. The existence of a counter-insurgency objective should not in itself rule out an inference of genocidal intent. (Written Observations of Canada, Denmark, France, Germany, the Netherlands and the United Kingdom, paras. 43, 45).
VI. Conclusion
For these reasons, Genocide Watch considers that the ‘only reasonable inference’ standard should be reformulated to protect the purpose and enforcement of the Genocide Convention. Multiple intentions for a state’s acts may coexist without an alternative intent nullifying the specific intent to commit genocide. The ICJ should clarify that the existence of another intent for a state’s acts does not necessarily preclude a finding of genocidal intent.
Respectfully submitted,
Dr. Gregory H. Stanton
Founding President, Genocide Watch
Chair, The Alliance Against Genocide
