The ICC vs. Bashir: Debating Genocidal Intent
Daniel Agundo writes:
Genocide may generally be a crime committed as an outcome of a political ideology or plan for violent societal transformation, requiring a socio-political theory to explain it, but it need not always be so. An individual can commit genocide, not as a private citizen, but if he happens to be in control of a state or a sufficiently organized military-political apparatus.
The sociologist Helen Fein argues that provided that the specific outcome of the action was the destruction, in whole or part, of a protected group, then that is genocide, irrespective of whether this was a byproduct of a set of actions pursued with other objectives in mind. I.e. specific genocidal intent is not necessary to obtain a conviction, merely intent to commit criminal acts.
Antonio Cassese on the other hand rules out genocide in the case of Darfur because he regards the crimes committed as incidental to a military objective. William Schabas goes further and argues that genocide should be defined exclusively as a state crime. You are placing yourself in this latter Cassese-Schabas camp. That is a respectable position to be in but it is not safe from critique.
I believe that Cassese is not clear about the distinction between exclusive (or overriding) intent and specific intent. The most cogent criticism of Cassese’s conclusions in the Darfur Commission report is that genocidal acts deliberately committed during the course of a counter-insurgency in pursuit of military objectives constitute genocide nonetheless. This critique does not need to go so far as the Fein position that any partial destruction of a protected group arising from deliberate acts is a crime, therefore an intended act, and therefore genocide. Specific intent hovers somewhere between general intent and exclusive intent. Under any reading of the law, motive is irrelevant (as with ordinary criminal acts). Those who drafted the Genocide Convention were concerned not just with the prosecution of perpetrators after the fact but also with the prevention of genocide, which entails extending protection to groups under threat, irrespective of the general intent of those who threaten them.
Of course, we must grant that this argument does deflate the sensationalist definition of genocide as the ultimate crime, graver than any other crime by its very nature.
If I read your earlier writing correctly (e.g. “˜Counterinsurgency on the Cheap’) this seems to have been your position a few years ago. This would mean that a toxic combination of factors created a common intent among President Bashir, his army commanders, and the militia commanders in the field. The ingredients include inter alia readiness to use excessive force, official tolerance of local militia agendas, a culture of impunity, and racist sentiment. In this mix we will find, I am confident, genocidal intent. Genocide, as you aptly wrote, “˜by force of habit.’ Or, to put it another way, an eliminationist agenda by default. As you yourself imply, in the “˜ethics free zone’ there would be no need for a plan.
It would be very hard (but not impossible) for prosecutorial strategy which adopts this line of argument to pursue the “˜perpetration by means’ mode of liability. Joint criminal enterprise would be a rather easier route to follow.
On one point I must wholeheartedly agree. The OTP has done a thoroughly third-rate job of baking a cake despite having on his table the finest ingredients a prosecutor could ever wish for. It is a dog’s breakfast.
Let me begin with one observation, which is that the judges of the PTC could take the material they have in front of them and rewrite the case, dropping the genocide charges and/or revising the mode of liability, and issuing an arrest warrant accordingly. This would have the same outcome for Sudan but would be a huge embarrassment for the Prosecutor.
Let me also draw your attention to Andrew Cayley’s recent article in the Journal of International Criminal Justice. Cayley is the former Senior Prosecuting Counsel at the ICC and his views should be taken very seriously. He makes an argument about the possibility that Bashir could be convicted of genocide without having had genocidal intent (pages 838-9), which is close to yours:
“˜The third or extended form of joint criminal enterprise requires the intention to participate in the criminal purpose and further it and to contribute to the commission of a crime by a group. Responsibility for a crime which was not part of the common purpose arises if the commission of this crime was foreseeable and (the accused) willingly took the risk that the crime would be permitted. In BrÄ‘anin, the Appeals Chamber of the ICTY stated that a participant in this extended form of joint criminal enterprise could be found guilty of genocide even without having the specific intent to destroy a protected group.’
Cayley then applies this to the Bashir case:
“˜It seems plausible and certainly easier to prove that Al Bashir may have pursued a slash-and-burn counter-insurgency campaign, knowing that the Janjaweed/militia proxies would employ genocidal tactics to carry out his desired political goal. If this characterization is accurate, while Al Bashir did not possess specific genocidal intent, he could still be found liable for genocide under an extended form of joint criminal enterprise within Article 25(3)(a) of the [Rome] Statute.’
Cayley notes that Judge Shahabuddeen put forward a dissenting opinion in the BrÄ‘anin case, stating that “˜with genocide, “specific intent always has to be shown.””
I will return to Cayley’s point below. Meanwhile, it is correct to say that my position has shifted. It’s a relatively small shift but it is, as it were, a shift across a watershed””possibly a shift from the BrÄ‘anin decision to the Shahabuddeen dissent.
(For your information, I spelled out my views at the time of the September 2004 U.S. genocide determination, in an article later published in Index on Censorship. I said that the determination is correct in law but a political blind alley. The article is not online so I am making the text available here: alex-darfur-genocide-index-1-2005)
Let me elaborate. The difficulty with defining specific intent in this way, combined with the absence of a scale threshold for determining genocide, poses a problem for the gravity of the crime. Genocide scholars have grappled with the question of how bad does it have to be to count as genocide, but not in a satisfactory way. The only “˜gravity’ component within the Genocide Convention is the implicit requirement that there must be intent to destroy a group in whole or [significant] part””I have added the implied word “˜significant’. That is a fairly modest requirement. It means that genocide could be committed if there were an intent to kill a single (prominent) individual. If we combine that with the concept of intent transferred directly from criminal law, then we will end up with a very low threshold of harm and very many genocides across the world, with many of them indistinguishable from war crimes and crimes against humanity. Genocide is therefore no longer the “˜crime of crimes.’
Did the drafters of the Genocide Convention intend to stray so far into the territory of international humanitarian law? Did they mean to define as “˜genocide’ acts committed during the majority of colonial wars of repression and counterinsurgencies? I suspect not, and I suspect that there would be considerable anxiety among military lawyers and commanders around the world if genocide could be committed without genocidal intent. This is similar to a position taken by William Schabas in a recent article for the Crimes of War Project in which he laments the way in which current jurisprudence and political usage is making genocide indistinguishable from crimes against humanity in general.
This is where the Shahabuddeen dissenting opinion is surely the correct route to go. In grave crimes such as genocide and crimes against humanity, the direct perpetrator is usually a relatively minor actor while true responsibility lies with the commander. To reverse this, and make the overall commander responsible for all of the crimes of the direct perpetrators, irrespective of his specific intent, would be an odd route to take. This might be one issue on which the U.S. Government and the Sudan Government might agree.
Your point about the possibility of an individual in control of a state committing genocide is a good one. While I lean towards the Cassese/Schabas camp, I do not want to miss this possibility. But I would argue that this does not obviate my point about the need for a socio-political theory of genocide. To the contrary, in such cases (Stalin’s USSR and Saddam Hussein’s Iraq might be among the rather few examples), we need a socio-political account of the structure and functioning of the state, such that one individual possesses and wields such power.
On the empirics, I believe it is clear that President Bashir does not and did not possess such individual power. Contributors to this blog have noted examples in which he overrode his subordinates. Fair enough. There are also examples in which he failed to do so, and examples in which he was forced to countermand them because they had challenged him. To prove the case that Bashir is in total control of the state, it is not enough to compile a list of cases in which he had the last word””it is necessary to show that he had the last word each and every time.
With due respect, Andrew Cayley’s views on JCE III should not be taken seriously. There is no JCE III in Art. 25(3)(a), a point that isn’t open to reasonable debate. Article 30 provides that “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.” Art. 25(3)(a) does not “otherwise provide” for recklessness/dolus eventualis, which is the basis of extended JCE. JCE III is thus not part of the article.
I find it incredibly disturbing that a former ICC prosecutor can claim — without so much as a cite or an argument, if you look at the article — that Bashir could be convicted of genocide via JCE III. And I say that as someone who has no problem with the idea that Bashir can be convicted of genocide (through perpetration by means).