Journal of International Criminal Justice Advance Access originally published online on August 6, 2007
Journal of International Criminal Justice 2007 5(4):839-857; doi:10.1093/jicj/mqm049
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Divergent Approaches to Determining Responsibility for Genocide
The Darfur Commission of Inquiry and the ICJ's Judgment in the Genocide Case
*Attorney, International Disputes Practice Group, Foley Hoag LLP; former member of the Atrocities Documentation Team commissioned by the US State Department to investigate allegations of international crimes in Darfur. [ ALoewens{at}foleyhoag.com]
**Attorney, Kirkland & Ellis LLP; former International Bar Association Fellow, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia (ICTY), and former Law Clerk to Judge T. Meron, ICTY. [ skostas{at}kirkland.com]
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Abstract |
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Internationally sanctioned assessments of genocide are relatively uncommon, and since genocide is usually assessed in the context of an individual's criminal prosecution, assessments of state responsibility for genocide are even rarer. Yet two such analyses have recently been completed: the International Commission of Inquiry on Darfur's Report and the International Court of Justice's Judgment on genocide in Bosnia. On a key issue, the methodology for determining whether a state is responsible for genocide, they diverged. Whereas the Darfur Commission determined whether the ‘central government’ of Sudan pursued a state policy or plan for genocide in Darfur, the ICJ stressed that a state commits genocide through the acts of its officials, holding that if a state organ or a person or group whose acts are legally attributable to the state, engages in genocide, then the international responsibility of that state is incurred. This article critically examines the different methodological approaches taken by these two bodies in light of international jurisprudence. It argues that the Darfur Commission erred in focusing its genocide inquiry on whether high-level officials in Sudan's government possessed genocidal intent, rather than on the perpetrators of the underlying criminal acts. In addition, it argues that, whether the Commission's goal was to determine state responsibility or individual criminal responsibility, its approach was at variance with international law as elucidated in the UN ad hoc tribunals and as subsequently confirmed by the ICJ in the Genocide Case. In that regard, the ICJ Judgment reestablishes two sound methodological principles: the existence of a state plan or policy, although probative of intent, is not an implicit element of genocide; and determining state intent (however that may be defined) is not a part of determining state responsibility for genocide.