The Darfur Report and Genocidal Intent

The author argues that the Commission of Inquiry on Darfur,in excluding any genocidal intent in the Government authoritiesof the Sudan, while leaving open the possibility for individualstate officials or members of militias to entertain such intent,did not duly take into account the various views on genocidalintent 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 orentity — activity in which individual perpetrators participate.As for the genocidal intent of individual perpetrators —in this typical scenario, according to the author — oneshould distinguish between (i) the view, upheld by the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) and the InternationalCriminal Tribunal for Rwanda (ICTR), as well as the Commissionof Inquiry, that such intent is the aim physically to destroya protected group, and (ii) the more correct view that suchintent consists of the individual's (a) knowledge of a genocidalcampaign and (b) at least dolus eventualis as regards the atleast partial destruction of a protected group. This legal constructionof genocidal intent does not, however, lead to conclusions substantiallydifferent from those reached by the Commission of Inquiry withregard to the mental attitude of the Sudanese Government andmilitias: as they did not act pursuant to a collective goalto destroy a protected group, no genocidal intent could materialize.However, contrary to the Commission's conclusions, it followsfrom this proposition that no genocidal intent could be foundeither if, in some instances, single individuals were held tohave acted with the desire to see the protected group destroyed.For, in this event, the two requirements for individual genocidalintent would be lacking, namely knowledge of a genocidal campaign(on the premise that no such campaign was carried out), anda fortiori dolus eventualis.     

Divergent Approaches to Determining Responsibility for Genocide: The Darfur Commission of Inquiry and the ICJ's Judgment in the Genocide Case

Internationally sanctioned assessments of genocide are relativelyuncommon, and since genocide is usually assessed in the contextof an individual's criminal prosecution, assessments of stateresponsibility for genocide are even rarer. Yet two such analyseshave recently been completed: the International Commission ofInquiry on Darfur's Report and the International Court of Justice'sJudgment on genocide in Bosnia. On a key issue, the methodologyfor determining whether a state is responsible for genocide,they diverged. Whereas the Darfur Commission determined whetherthe ‘central government’ of Sudan pursued a statepolicy or plan for genocide in Darfur, the ICJ stressed thata state commits genocide through the acts of its officials,holding that if a state organ or a person or group whose actsare legally attributable to the state, engages in genocide,then the international responsibility of that state is incurred.This article critically examines the different methodologicalapproaches taken by these two bodies in light of internationaljurisprudence. It argues that the Darfur Commission erred infocusing its genocide inquiry on whether high-level officialsin Sudan's government possessed genocidal intent, rather thanon the perpetrators of the underlying criminal acts. In addition,it argues that, whether the Commission's goal was to determinestate responsibility or individual criminal responsibility,its approach was at variance with international law as elucidatedin the UN ad hoc tribunals and as subsequently confirmed bythe ICJ in the Genocide Case. In that regard, the ICJ Judgmentreestablishes two sound methodological principles: the existenceof a state plan or policy, although probative of intent, isnot an implicit element of genocide; and determining state intent(however that may be defined) is not a part of determining stateresponsibility for genocide.     

The Report of the International Commission of Inquiry on Darfur & Genocidal Intent — A Critical Analysis

Netherlands International Law Review -     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

The Background and Causes of the Genocide in Rwanda

This article begins with an account of significant events andsocio-political relationships in the history of Rwanda, leadingto mass murder and genocide in 1994. An explanation is thenoffered of these crimes, based on an analysis of certain ecological,economic, cultural and political factors specific to Rwanda,but shared to an important extent by much of East Africa.     

The Security Council in the Face of Genocide

The genocide in Rwanda will define for our generation the failureto intervene in the face of mass human rights abuses. The UNSecurity Council (the Council) was intimately involved in thisterrible event, with the decisions it took from October 1993,when a peacekeeping mission was created for Rwanda, having adecisive effect on what happened. This article details the crucialmeetings held by the Council in secret and informal sessionsand describes how a serious assessment of the situation in Rwandawas simply missing. It shows how the peacekeepers of the Council'smission to Rwanda were abandoned during the genocide and howthe efforts of these UN personnel to ease the suffering of theRwandan people were ignored by the Great Powers.     

The United Nations,the African Union and the Darfur Crisis: Of Apology and Utopia

Netherlands International Law Review -     

The Crime of Genocide in the ICTR Jurisprudence

The jurisprudence of the International Criminal Tribunal forRwanda (ICTR) has properly focused on the special intent (dolusspecialis) to destroy a group as the distinguishing characteristicof genocide and differentiated it from result-oriented crimes.Although the ICTR has crowned genocide as ‘the crime ofcrimes’, it has simultaneously dethroned it by holdingthat it attracts the same sentence as other humanitarian lawviolations. Nonetheless, ICTR jurisprudence attaches considerableimportance to characterizing the destruction of the Tutsi asgenocide as distinct from crimes against humanity. Because theTutsi cannot be readily distinguished as one of the protectedgroups under the Genocide Convention, Trial Chambers have goneto great lengths to characterize them as an ‘ethnic’group in order to justify the label of genocide.     

The Impact of Psychological Consequences of Rape on Rape Case Attrition: The Police Perspective

This paper examines whether the psychological sequelae of rape relate to rape case attrition by leading police to see the victim as less reliable. A mixed methods approach with two linked studies, one qualitative and one quantitative, was used. In Study 1, the qualitative study, interviews with 12 specialist police officers were analysed using Framework Analysis. In Study 2, the quantitative study, 76 specialist officers completed an online questionnaire to assess the generalisability of Study 1’s findings. In Study 1, officers’ perceptions of victims clustered into three stereotypes, which we label “the real victim”, “the mad discloser”, and “the bad discloser”. Victims who exhibited signs of shame, self-blame, and post-traumatic stress reactions which impeded their ability to give a coherent account of the rape were perceived as less reliable “mad” or “bad” victims. The findings of Study 2 supported these results. Although police interview strategies have improved in recent years, there is evidence that signs of trauma and shame in the victim are sometimes misinterpreted as signs of lying. This may affect attrition by impacting on victim-officer relationships. Further training on recognising trauma and understanding its consequences is recommended both for specialist officers and front-line staff.     

Complicity,Collectives, and Killing in War*

Recent work on the ethics of war has struggled to simultaneously justify two central tenets of international law: the Permission to kill enemy combatants, and the Prohibition on targeting enemy noncombatants. Recently, just war theorists have turned to collectivist considerations as a way out of this problem. In this paper, I reject the argument that all and only unjust combatants are liable to be killed in virtue of their complicity in the wrongful war fought by their side, and that noncombatants are not permissible targets because they are not complicit. I then argue that just combatants have some reason to direct force against unjust combatants rather than unjust noncombatants, because they should respect the reasonable self-determining decisions of other political communities, when those communities settle on the distribution of a negative surplus of cost for which they are collectively but not individually responsible. These collectivist reasons will not fully justify the Permission and the Prohibition, but they can contribute to that justification.     

Writing the Rwandan Genocide: The Justice and Politics of Witnessing after the Event

This paper tries to read together three texts that refer to the Rwandan genocide and to draw attention to certain paradoxes that emerge from the way in which the texts might be said to talk to and past each other. The overall intention is to throw light on the complications in witnessing such an event, and to themes of justice and politics that arise.

The Sudanese Darfur Crisis and Internally Displaced Persons in International Law: The Least Protection for the Most Vulnerable

The article examines the international legal position of internallydisplaced persons (IDPs) in the wake of the ongoing humanitariancrisis in the Darfur region of western Sudan. The innocent civiliansof Darfur have become the primary target of an armed conflictin Sudan since 1983. The terrorised survivors fled their homesin search of safety, causing massive forced internal populationdisplacement. The number of IDPs in the world has steadily beenincreasing, and has now outstripped the number of refugees.Yet there is no specific international legal and institutionalapparatus for IDPs. This article highlights and addresses theproblems of their legal identity, rights, humanitarian assistance,and protection in international law. It traces the developmentof international legal and institutional frameworks for IDPsand their current state of coverage and protection. It offerssuggestions to overcome the inadequate legal coverage and uncertainprotection. The marginalised plight of IDPs needs to be addressedin a holistic manner as an integral part of the internationalprotection of human rights and the enforcement of humanitarianlaw.     

Injustice and Employees' Destructive Responses: The Mediating Role of State Negative Affect

The focus of this study was employees' destructive behavioral intentions (i.e., exit, neglect, and aggressive voice) as a result of perceived injustice. In order to get an indication of the generalizability of the results, two studies employing different methodologies were conducted among different samples: a survey study (Study 1) among 244 female maternity nurses from The Netherlands, and a vignette study (Study 2) among 71 male and 43 female employees from an international company in South Africa. Furthermore, the second study tested whether the effects of injustice on destructive behavioral intentions were mediated by state negative affect. Two models appear to fit the data well. The first model suggests that interactional injustice gives rise to negative behavioral reactions through an increase in state negative affect. The second model shows that procedural justice can buffer the negative effects of low distributive justice. Specifically, employees report more negative affect and, subsequently, a stronger tendency to leave the organization only when both distributive and procedural justice are low. The theoretical and practical implications of these findings are discussed.     

Gendered Paths to Legal Citizenship: The Case of Latin‐American Immigrants in Phoenix,Arizona

In this paper we seek to contribute to a greater understanding of legal citizenship by exploring the gendered experiences of Latin‐American‐origin immigrants in the greater Phoenix metropolitan area as they go through the legalization process. To explore this gendered angle we rely on in‐depth interviews conducted from 1998 through 2008 with women and men from Guatemala, El Salvador, Honduras, and Mexico. The data reveal that although immigration policies and procedures are presumably gender neutral, they are in fact inflected with gendered meanings and enacted in gendered social structures. Gender ideologies permeate the processes to differentially affect the legalization, permanent legal residence, and citizenship processes of immigrant women and men. This article points to key gender inequalities in immigration law.     

Oil, Rape and State Crime in Nigeria

This case study seeks first to explore the culpability of the state of Nigeria in regards to recent allegations of rape and sexual torture by security forces and, secondly, to question why these rapes continue to occur despite Nigeria’s responsibility to address them. Though exact rates of violence are impossible to ascertain, reports by the media and various non-governmental organizations describe the widespread abuse of women, specifically at the hands of military officials. Evidence suggests that, by failing to respond appropriately to these acts of violence, the state of Nigeria is in direct violation of international law. Moreover, the decentralized nature of the Nigerian legal system creates an environment in which those Nigerian laws that do address rape and/or torture are rendered ineffective. This paper argues that what is happening in Nigeria does in fact constitute a state crime and, thus far, has not received appropriate attention from the International Criminal Court, to which Nigeria is a party, or the international community at large. As no action has yet been taken, we consider the factors that create an environment in which international and national punitive measures, as they are currently practiced, are ineffective.

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