The Darfur Report and Genocidal Intent

Abstract

The author argues that the Commission of Inquiry on Darfur, in excluding any genocidal intent in the Government authorities of the Sudan, while leaving open the possibility for individual state officials or members of militias to entertain such intent, did not duly take into account the various views on genocidal intent put forward in legal literature. In the author's opinion, genocide — typically, that is, for all practical purposes — requires a collective activity of a group, state or entity — activity in which individual perpetrators participate. As for the genocidal intent of individual perpetrators — in this typical scenario, according to the author — one should distinguish between (i) the view, upheld by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as the Commission of Inquiry, that such intent is the aim physically to destroy a protected group, and (ii) the more correct view that such intent consists of the individual's (a) knowledge of a genocidal campaign and (b) at least dolus eventualis as regards the at least partial destruction of a protected group. This legal construction of genocidal intent does not, however, lead to conclusions substantially different from those reached by the Commission of Inquiry with regard to the mental attitude of the Sudanese Government and militias: as they did not act pursuant to a collective goal to destroy a protected group, no genocidal intent could materialize. However, contrary to the Commission's conclusions, it follows from this proposition that no genocidal intent could be found either if, in some instances, single individuals were held to have acted with the desire to see the protected group destroyed. For, in this event, the two requirements for individual genocidal intent would be lacking, namely knowledge of a genocidal campaign (on the premise that no such campaign was carried out), and a fortiori dolus eventualis.