Starting today, we open a debate on John Hagan and Wenona Rymond-Richmond’s Darfur and the Crime of Genocide. Over the coming days, a number of commentators will post reviews and discussions of the book, and the authors will respond. In this posting I open the debate.

John Hagan and Wenona Rymond-Richmond have written a book that is sure to spark many controversies. In this posting I want to take Darfur and the Crime of Genocide as the starting point for an exploration of the intersection of law and socio-political theory. Just as the word “˜genocide’ itself is a Greek-Latin hybrid, so too the concept is a legal-sociological fusion.

Let me open by citing two paragraphs from page 192 of their book, which for me present a particularly interesting argument:

Criminal law and social science operate with different goals and standards of evidence. Edwin Sutherland confronted this problem in debates about his then-controversial use of the concept of white-collar crime. Sutherland famously insisted that designations of white-collar crime did not require the legal evidence necessary to find a specific individual guilty “˜beyond a reasonable doubt.’ He instead argued that a civil law standard more consistence with social science and based on the “˜balance of probabilities’ should apply. Today, he likely would add that our interest as social scientists should be more in collectivities than in individuals. The “˜specific intent’ of greater importance for a criminology of genocide involves “˜collective racial intent.’ The kind of evidence presented in this chapter is highly relevant to a prima facie legal determination of genocide, but it is less relevant to the ultimate finding of the guilt or innocence of any specific accused individual.

Like the founding figure of genocide, Raphael Lemkin, Sutherland argued the importance of identifying white-collar crime as a crime, for the purposes of public discourse as well as scientific study. Yet, Sutherland also insisted that a social science of white-collar crime could not progress if it required the certainty of the criminal law. Social science is not bound, and cannot progress, with the same preoccupation about the guilt or innocence of specific individuals. Our attention focuses on more general social principles and processes, such as collective racial motivation and intent. More than fifty years after Edwin Sutherland added white-collar crime to the research agenda of criminology, it is time to do the same with Raphael Lemkin’s concept of genocide.

I argue that it is absolutely correct for any approach to genocide, whether social scientific, public policy or prosecutorial, to merge legal and the social scientific approaches. Any diplomatic or military measures to prevent or halt genocide require a socio-political analysis of the violence if they are to stand any chance of success. This is obvious. Less obvious is that any successful prosecution for genocide also requires a socio-political theory of genocide. Let me make several observations.

First, the parallel with white collar crime is illuminating. Investigating the sociology of genocide is an important exercise, even while dealing with standards of proof considerably below what is required to convict an individual. We should not allow the courts to be the sole arbiters of the crime.

In passing, I could add that human rights reporting is an interesting genre that reflects the hybrid nature of the genocide and crimes against humanity. The reports of organizations like Human Rights Watch are part socio-political journalism and part allegation of criminal responsibility. There is much reliance on victim testimony, and considerable inference from the pattern of crime and the behavior of belligerents. It is interesting to note that the presentational format and moral tenor of human rights NGO reports has influenced the approaches taken by international tribunals including the ICC.

Second, one of the book’s main insights, namely that genocide is a crime committed of a collectivity or an institution, is very important. An individual acting alone cannot commit genocide, only multiple homicide aggravated by racism or a similar motive. In standard criminal law, the distinction between motive and intent is fundamental: motive is irrelevant to a determination of guilt, and proving criminal intent is all that suffices. This distinction cannot be transferred to genocide with the same clarity. As Hagan and Rymond-Richmond note in the excerpted passage, the requirement of a specific intent for genocide is important. There must be a shared plan or project of some kind. Genocide cannot be committed solely as the byproduct of some other activity.

The case law developed by the ICTR and ICTY is not very useful in this regard as it has not grappled with the question of what kind of plan or project should be considered genocidal, and what kind of collectivity or institution can be said to possess such a plan or project. Can it only be a state? Could a security service or military unit, acting with the authority of a state, be genocidal? Can an insurgent organization (e.g. the Forces Democratique de Liberation du Rwanda) be legitimately described as genocidal? Could a corporation be genocidal””for example a logging company that destroys the entire habitat of a small native American hunter-gather group in the Amazon?

It is instructive that the favored prosecutorial strategies for genocide are variants of conspiracy and criminal enterprise, that is, membership in a collectivity or institution that is pursuing a genocidal plan or project. This lowers the bar on standards of proof for establishing the existence of a plan or project””it can be inferred from a systematic pattern of crimes.

The Prosecutor of the ICC, Luis Moreno Ocampo, has taken a very different approach in his Public Application for an arrest warrant against President Omar al Bashir. In the 14 July 2008 press conference in which he announced the application, Ocampo explicitly disavowed modes of liability including superior responsibility, conspiracy and joint criminal enterprise (JCE), in favor of the bold assertion that Bashir had indirectly perpetrated the crimes through others. This implies a different socio-political theory of genocide to that advanced by Hagan and Rymond-Richmond. It is the kind of charge that might have been laid against Adolf Hitler or Josef Stalin. Ocampo’s approach puts the focus back on the individual, who is allegedly guilty of designing and implementing a genocidal plan. This doesn’t obviate the need for a sociology of genocide, it just implies a different one.

Third, there are important contrasts between genocide and white collar crime. Genocide is graver. But also, the order of conceptual manufacture is different. With white-collar crime, sociological inquiry and definition came first, driving legal definition (which is still controversial and imprecise). Concepts of conspiracy were elaborated and specific concepts such as JCE created. With genocide, a legal-sociological concept was coined first, including its own implied social theory and jurisprudence. This is now being developed both through the courts and through social science, but it betrays its origins of sixty years ago in Europe. Within the Genocide Convention’s implicit sociology there are two overlapping and competing paradigms of genocide. One is eliminationist mass murder according to a state plan and a racist ideology. The other is imperial conquest and subjugation of conquered peoples. The 1994 Rwandan genocide fitted into the first paradigm fairly easily. Because of the untimely death of Slobodan Milosevic, we have been denied a true test of where former Yugoslavia may have fallen.

Neither of these implied theories apply to Darfur without a stretch. Hagan and Rymond-Richmond, focusing on the atrocities committed during the height of hostilities in Darfur in 2003-04, make a case in support of genocide. I would argue that the fact that the grave crimes were confined to the localities and the time period of that intense conflict is an argument against specific genocidal intent, and rather that crimes against humanity were committed in the course of counterinsurgency. The International Commission of Inquiry into Darfur headed by Antonio Cassese draws a comparable conclusion, noting that crimes against humanity are no less serious or heinous than genocide.

Prosecutor Ocampo makes another, less sophisticated case, and claims ongoing genocide across all of Darfur. He has surely stretched the much abused concept of genocide beyond its breaking point.