When International Courts Are Asked to Redefine the Law
Why international courts must resist the pressure to redefine established legal thresholds
The International Court of Justice is navigating a moment of intense scrutiny. Multiple cases involving allegations of the gravest crimes in international law have put the Court under pressure not just to resolve disputes, but to recalibrate what those crimes actually mean. What's at stake isn't simply the outcome of individual cases, it's whether international law can maintain the precision that gives it authority.
The Problem with Elastic Definitions
International law is deliberately conservative in its language. Thresholds are high, definitions narrow, and evidentiary standards exacting. This isn't a flaw or an obstacle to justice. It's precisely what allows legal findings to carry weight beyond politics, advocacy, or moral outrage. When courts depart from this discipline, even with sympathetic intentions, they risk transforming law into something else entirely: a mirror of prevailing sentiment rather than an independent standard.
The challenge has become particularly acute in cases involving genocide allegations. The 1948 Genocide Convention established a specific legal test requiring proof of 'specific intent to destroy' a protected group, in whole or in part. As William Schabas, one of the world's leading experts on the Convention, has consistently emphasised, that mental element separates genocide from other serious international crimes. It's not a technicality. It's the crime's definition.
When Legal Terms Become Political Weapons
Recent cases before the ICJ illustrate how genocide accusations have become increasingly politicised. South Africa's case against Israel has triggered diplomatic tensions, with the United States boycotting South Africa's November 2025 G20 summit. Legal scholar David Bernstein has warned that attempts to stretch genocide's definition to suit political objectives risk undermining the Convention itself.
The same dynamic applies to The Gambia's proceedings against Myanmar over military operations in Rakhine State in 2017. The question isn't whether mass violence happened. It's whether the evidence establishes the specific intent required under the Convention. Collapsing that distinction, treating patterns of conduct or humanitarian consequences as substitutes for legally defined intent, may produce judgements that feel responsive in the short term but prove unstable in the long run.
As Bernstein argues, when genocide becomes 'a political weapon' rather than an objective legal standard, it creates perverse incentives. States know that causing civilian casualties whilst fighting non-state actors will invite genocide accusations, regardless of intent. This doesn't protect civilians. It hands armed groups a blueprint for exploiting legal institutions whilst international law loses credibility.
The Court's Track Record Matters
The ICJ has been remarkably consistent in maintaining rigorous standards. In Bosnia and Herzegovina v Serbia, the Court made clear that the intent requirement cannot be watered down. In Croatia v Serbia, despite extensive evidence of war crimes and ethnic cleansing, the Court found that specific genocidal intent had not been proven.
This isn't the Court being overly cautious or legalistic. It's the Court doing precisely what it's meant to do: applying established legal principles to specific facts. As Philippe Sands KC has written, international adjudication depends on the perception that like cases will be treated alike, judged against consistent standards.
The Danger of Outcome-Driven Reasoning
A recurring challenge for international tribunals is the pressure to treat legal definitions as flexible instruments, expanding or contracting depending on the case before them. If genocide becomes more elastic, applied readily without clear evidence of specific intent to destroy a group, the term loses its force. As Antonio Cassese argued, rigorous legal standards ensure that findings of genocide carry weight. The danger is transforming genocide from a specific crime into a general descriptor for mass atrocities.
This matters beyond individual cases. When legal thresholds shift based on political context, the law ceases to function as a neutral arbiter. Professor Dapo Akande of Oxford University has noted that ICJ rulings are intensely fact-specific and context-dependent, but they must apply consistent legal tests. Without that consistency, international law becomes unpredictable, vulnerable to selective application and retrospective reinterpretation.
Why Strict Standards Protect Credibility
If international adjudication is to retain credibility, legal thresholds must remain clear and demanding, not because the underlying issues are unimportant, but because the law itself is. The moment definitions shift with political winds, we lose what makes international law worth having: a stable framework that stands above the fray.
The ICJ has found genocide in only a handful of cases since the Convention came into force. That's not a failure of justice. It's a reflection of how demanding the legal test is meant to be. When courts maintain that discipline, even in cases that attract intense public attention, they preserve the Convention's integrity.
Moving Forward
The current cases before the ICJ offer an opportunity to reaffirm why rigorous standards exist. In an era where genocide accusations are sometimes made hastily, maintaining the Convention's precision ensures that the gravest crime known to humanity retains its proper meaning.
The proceedings will be decided on their own terms, based on specific evidence about what happened and what perpetrators intended. They won't and shouldn't serve as templates for unrelated conflicts. What they will test is whether the ICJ can resist pressure to treat law as a vehicle for broader condemnation, holding firm to the principle that legal findings must rest on evidence meeting established thresholds.
International law depends on continuity. Its authority rests on the idea that the same rules apply across time, geography, and political context. Preserving that continuity sometimes means delivering decisions that are legally sound but unsatisfying to those seeking broader recognition. It's not always comfortable, but it's necessary. The ICJ's greatest contribution isn't always the outcome it delivers. Sometimes, it's the discipline it maintains in getting there.