Will the International Court of Justice Lower the Bar for ‘Genocide’?

The International Court of Justice (ICJ) will issue its final judgment on November 19 in the landmark case charging Myanmar with genocide against its Rohingya minority.

There is strong evidence that Myanmar’s actions have met the ICJ’s current high standard of proof for genocide. Myanmar’s forces have reportedly perpetrated several mass executions of Rohingya civilians, including dozens of children, by rounding them up and deliberately shooting or hacking them to death.

But several states party to the ICJ and activists are pressing the court to arrive at the genocide judgment in a way that lowers the standard of proof for determining that genocide has been committed.

Lowering the bar as proposed would facilitate genocide claims against others, including Israel and the United States, especially when they are forced to fight terrorists hiding behind human shields. That would incentivize the use of such shields and inevitably lead to international and foreign courts being flooded with weak allegations of genocide against Washington and its allies.

If ICJ judges do use the Myanmar case to lower the bar for genocide, the Trump administration will likely respond with sanctions similar to those the United States has already imposed on judges serving on the International Criminal Court (ICC), a different tribunal.

U.S. Opposed to Lowering Genocide Threshold

Mike Waltz, the U.S. ambassador to the United Nations, recently warned the ICJ not to use its Myanmar case “to lower the legal threshold for proving genocide so that weakened and false standard can later be weaponized against American and allied soldiers whenever they raise a finger against terrorists that hide behind civilians.”

Consistent with the Genocide Convention, the ICJ has long set a high standard of proof for inferring genocidal intent from a pattern of conduct. The court specified in its two existing genocide judgments (Bosnia v. Serbia and Croatia v. Serbia) that intent to destroy the target group “must be the only reasonable inference which can be drawn from the pattern of conduct.”

Key member state submissions in the Myanmar and the Israel genocide cases press the ICJ to replace that current clear, high standard with a lower, vague, and politically malleable one: a range of “facts and circumstances” assessed “comprehensively and holistically.”

Filings urging use of the new approach have relied upon numerous reports and statements by several UN agencies and officials for these contextual “facts and circumstances.” Many of these reports and statements are both highly politicized and heavily reliant on secondary sources, particularly nongovernmental organization reports.

Based on member state submissions to the ICJ, in practice, this new standard of proof would enable inferring genocidal intent by any Western military in any conflict with extensive casualties, destruction, and displacement. Such consequences are sadly inevitable in a protracted urban conflict against a terrorist group using human shields. A standard of proof based on such outcomes will mean that the more a terrorist group hides among civilians, the stronger the genocide case against its adversary.

The campaigns waged by the U.S.-led coalition against ISIS in Iraq and Syria all inevitably caused civilian casualties, destruction, and displacement, in large part because ISIS extensively used human shields. The Taliban and Libyan, Serbian, and Iraqi forces have also used human shields against the United States or other NATO forces.

Under a diluted standard, future such campaigns, by Washington, its allies, or states contributing troops to peace operations, could be presented as genocidal. Fiji’s UN ambassador has warned that “[i]f sending [peacekeeping] troops to disarm armed groups or stabilize a collapsing state carries the risk of genocide proceedings,” countries like Fiji “will quietly stop volunteering.”

Waltz singled out ICJ ad hoc judge Navi Pillay as leading the effort to lower the threshold. He added that as “our actions against the ICC demonstrate, we will not allow” international courts to “weaponize the law against our troops, undermine our sovereignty, or put American lives at risk.”

Waltz was referencing the Trump administration’s ongoing campaign to dismantle the ICC. That campaign has included imposing sanctions on nine of the ICC’s judges for rulings deemed threatening to U.S. and allied security.

Myanmar Genocide Provable Without Lowering Threshold

The ICJ could, without lowering the current standard of proof, find that Myanmar committed genocide. Both the Biden and Trump administrations, not known for agreeing on legal issues, have rightly characterized the country’s Rohingya minority as victims of genocide.

Myanmar has said it was acting to counter terrorism. But genocidal intent is the only reasonable inference which could be drawn from how Myanmar reportedly deliberately targeted Rohingya civilians in several instances. Myanmar’s claimed counterterrorism objective does not explain why its forces reportedly captured or targeted defenseless children and other civilians, whose defining characteristic was their Rohingya identity, including as they attempted to flee to Bangladesh, and then systematically and deliberately killed them without any military rationale.

Threshold Lowering Motivated by Forthcoming Cases

Since the ICJ could readily find that Myanmar has committed genocide under the current standard of proof, why are Pillay and her allies attempting to lower it?

A UN commission led by Pillay has already accused Israel of committing genocide even though its conduct in Gaza does not meet the current definition. More importantly, the ICJ has two other cases, both to be decided after the Myanmar case, with outcomes likely dependent on whether the ICJ lowers its genocide threshold. The first is South Africa’s case claiming Israel committed genocide in Gaza. The second is Nicaragua’s case claiming Germany contributed to genocide by providing military aid to Israel. Anti-Israel activists have publicly urged the ICJ to lower the threshold in order to facilitate a later genocide ruling against Israel.

In contrast with Myanmar’s deliberate slaughter of Rohingya civilians, Israel has undertaken extraordinary precautions to minimize harm to civilians in Gaza, including instituting daily pauses in battles; using precision-guided munitions; making calls and sending texts and fliers ahead of particular strikes; creating safe zones; and requesting that civilians evacuate specified areas. Israel’s clear intent has been the lawful objective of ending the military threat posed by Hamas in order to prevent a recurrence of its October 7, 2023, massacre of Israeli civilians, which Hamas has vowed to repeat “again and again” until Israel is destroyed.

Civilian casualties in Gaza were higher than they otherwise might have been because Hamas deployed civilians as human shields — a war crime under international law — as a core part of its planning and goals. Hamas committed this war crime by systematically embedding its fighters, command infrastructure, and weapons within civilian areas, including in a 300-mile military tunnel network under and inside civilian buildings; by repeatedly using hospitals to conceal and support military operations; by persistently firing from buildings housing civilians; and by intentionally exposing Gaza’s civilians to danger by discouraging and preventing their evacuation from battle zones. Indeed, Hamas did not merely foresee harm to Gaza civilians; it sought to produce it.

To get around these facts, Pillay and her politically driven allies need the ICJ to replace the current high standard of proof for genocide with one so elastic that the judges can find genocide in a far broader range of circumstances.

Since the ICJ can resolve the genocide claims against Myanmar under its existing standard, it should do so without lowering the threshold. As former ICJ President Nagendra Singh warned in a 1978 separate opinion, “a tribunal indulging in unnecessary pronouncements, by making them when not legally required to do so, could easily undermine its judicial character.” A judgment that lowers the threshold will rightly be seen as the ICJ acting based on politics, not law, as a legislature instead of a court.

Technically, the ICJ does not set binding precedents; the court’s statute provides that “a decision of the Court has no binding force except between the parties and in respect of that particular case.” However, the ICJrarely departs from its established case law. In addition, ICJ opinions are treated as authoritative by the United Nations and many courts worldwide.

Lowered Threshold Would Handcuff Western Democracies

Andres Munoz-Mosquera, who was the chief legal adviser to NATO’s supreme allied commander from 2014 to 2025, has warned that a new, lower, and more malleable threshold will be used by dictatorships and terrorist groups to handcuff Western democracies with an avalanche of weak genocide claims. These claims will be made against Western commanders and their troops in both international courts and the more than 90 national courts claiming “universal jurisdiction” over genocide allegedly committed abroad by foreigners against foreigners.

Lowering the threshold in the Myanmar case will also make it easier for Nicaragua to win its ICJ case claiming Germany contributed to genocide by providing military aid to Israel. Both a lowered threshold in the Myanmar case and a German loss in its case will encourage and facilitate new claims that the United States and its allies are complicit in genocide when they assist an ally engaged in urban warfare or otherwise forced to fight an enemy using human shields.

The ICJ can issue orders only to nations, not terrorist groups. The court’s provisional measures restricted Israel’s military while acknowledging it had no authority over Hamas. NATO members would face the same asymmetry against other terrorist groups.

Established U.S. Reservation Would Face Critical Test

Article IX of the Genocide Convention provides the ICJ with jurisdiction over “disputes” between convention parties “relating to the interpretation, application or fulfillment” of the convention, “including those relating to the responsibility of a State for genocide. . . . ”

When the United States joined the convention, it insisted on a “reservation” — an exemption — from Article IX. The U.S. reservation insisted that the ICJ could only hear a genocide case against the United States with “the specific consent of the United States.” A future ICJ genocide case against Washington would test the ICJ’s willingness to defer to the U.S. reservation.

The ICJ has interpreted Article IX to mean that any state party to the Genocide Convention can bring a case to the ICJ claiming that another state party is responsible for genocide. That is what the Gambia has done in the Myanmar case and what South Africa has done in the Israel case, even though neither the Gambia nor South Africa is involved in (or even suffered tangible harm from) the actual armed conflict in which the genocide allegedly occurred.

The American reservation to Article IX of the Genocide Convention ostensibly protects the United States against ICJ jurisdiction in disputes relating to that convention. But it is not hard to imagine a future ICJ invalidating the reservation. Both the United Kingdom and the Netherlands refused to accept the reservation at the time, and past British, Dutch, German, and Japanese ICJ judges have opined that subsequent developments in international law and practice may have rendered this reservation invalid.

The United States already has a long history of problematic ICJ cases. These include the case brought by Nicaragua in which Washington was held to have violated international law by arming the Contra rebels, three different cases relating to consular issues in which the ICJ ruled against the United States, and three cases (the most recent in 2023) in which Iran won partial victories against the United States at the ICJ. Given this track record, Washington has particular reason to be concerned that changes made by the ICJ in the Myanmar case could be used against the United States in the future.

As has already been seen in preliminary stages of the South Africa v. Israel case, it will be politics, not law, that drives the ICJ’s response to any such future claims. Several of the judges’ home countries are hostile to the United States, and studies demonstrate that ICJ judges’ votes are typically consistent with their home countries’ UN General Assembly votes.

In addition, Washington’s Article IX reservation would not insulate it from the ICJ’s new, lower threshold being adopted by other courts, including in genocide cases against current or former American officials at the ICC, or in universal jurisdiction cases in national courts.

The United States has strong reasons for concern about universal jurisdiction cases against U.S. officials in foreign national courts. Two decades ago, universal jurisdiction complaints alleging war crimes in Afghanistan and Iraq were brought in European courts against President George W. Bush, Secretary of Defense Donald Rumsfeld, and Secretary of State Colin Powell. The past two years have seen an explosion of universal jurisdiction complaints (all or nearly all thus far against non-Americans) in national courts, with several convictions. In France alone, there are reportedly more than 150 cases currently being investigated on universal jurisdiction grounds.

China already extensively uses foreign-court lawfare against critics. A campaign secretly driven by China could use the lower genocide standard to launch lawfare against U.S. and allied officials, in foreign courts claiming universal jurisdiction, at a rapid pace all over the world.

ICJ judges who vote to lower the genocide threshold will damage the court’s credibility and undercut democracies’ ability to fight terrorists and autocrats. Many rule-of-law democracies will be torn apart by even weak genocide claims, while autocrats will shrug them off.

Washington should use all appropriate means to make clear to the ICJ judges that they should rule consistent with the existing standard of proof for genocide — and not lower the bar.

Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies (FDD) and a law professor at Arizona State University. He is the author of Lawfare: Law as a Weapon of War (Oxford University Press). He previously served for more than a decade in legal and policy positions at the U.S. State Department, and for six years as a part-time advisor on international lawfare issues to NATO’s Supreme Allied Commander. For more analysis from Orde and FDD, please subscribe HERE. Follow FDD on X @FDD. Follow Orde on X @ordefk. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.