Reframing Genocide

Genocide has recently taken center stage in international affairs. Both Israel and Hamas and Russia and Ukraine have accused one another of committing genocide or having genocidal aims, and each side has denounced allegations against themselves. The legal accuracy of these accusations depends, inter alia, upon whether the allegedly genocidal acts were committed with “intent to destroy,” as required by the Genocide Convention. Courts and commentators nearly all assume that the “intent to destroy” describes an individual’s internal mental state and the mens rea of the crime of genocide. In this Article, I argue that this individualistic interpretation of genocide is inaccurate and unworkable. Genocide is not a discrete act committed by an individual perpetrator. It is a collective process arising out of particular structural conditions. Furthermore, the gap between the enormity of genocidal intent and the capacity of individuals renders any determination regarding the intentions of individual perpetrators highly speculative. And the structural conditions that make genocide possible also make it difficult for courts to disentangle individuals’ intentions. As a result of these difficulties, criminal tribunals and the International Court of Justice have produced inconsistent and convoluted jurisprudence. Worse, the individualistic interpretation has stymied efforts at prevention by making it easy for states to deny allegations of imminent or ongoing genocide based on uncertainty about the innerworkings of individuals’ minds. The alternative structural approach I propose understands genocide as a collective process in which the structural context exhibits an “intent to destroy.” Accordingly, whether a situation counts as genocide would not depend on the internal mental states of individual perpetrators, but rather, objective indicators of genocidal structures. Reframing the definition of genocide in this way streamlines judicial decision-making and makes it harder for states to get away with ignoring, contributing to, or committing genocide.