Wednesday, February 02, 2005

Individually Pursued Genocide in the Sudan

Now that the International Commission of Inquiry on Darfur (led by Antonio Cassese) has issued its report on whether the killing in the Sudan constitutes genocide, most legal commentators have shifted their attention to whether the perpetrators of war crimes in Darfur should be referred to the ICC or some other international / hybrid / national tribunal. This is a worthy debate, but I think that an interesting issue of the substantive law that would create the background of that debate still needs to be addressed. Specifically, if the government was not pursuing a policy of genocide (which the Commission believes) can individuals be prosecuted for genocide?

Para. 641 of the report reads:
The Commission does recognize that in some instances, individuals, including Government officials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case-by-case basis.

This implies that an individual, acting on his own accord (or at least his own "intent") could be guilty of a genocide as a war crime. It is true that the crime of genocide is essentially an intent crime, meaning that a perpetrator has to engage in (1) killing (2) by a protected group with (3) genocidal intent. There is no established requirement that the perpetrator have the means or actually accomplish a substantial number of killings of the targeted group. The absence of such a requirement (to me) lessens the impact of a genocide crime (which I believe should be one of an organization made of individuals) to the mere individual bad acts (which should be read as war crimes, but not labeled or punished as genocide). There is something inherently and extremely nefarious about an organization (however loosely knit) planning and executing an agreement to target a group of people for extermination that simply is not matched by the inherent evil present in an individual engaged in a war crime. If this were not true, the holocaust would not quite be as horrifically mind-boggling as it is, and instead would be akin to the insane acts of evil individuals.

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