1. Introduction
Under customary international law and maybe also the Genocide Convention,[1] individuals are prohibited from committing the crime of genocide, as defined in Article II of the Convention, as well as ancillary crimes, like complicity in genocide, enumerated along with it in Article III. Breach of any of these prohibitions gives rise to the criminal responsibility under international law of the individual in question. As defined in Article II of the Convention, the crime of genocide involves the commission of any of five specified acts[2] ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. The specific intent, or ‘dolus specialis’, to destroy in whole or in part any of the protected groups is the essence of the crime of genocide.
For their part, under customary international law and – as per the International Court of Justice (ICJ) in Application of the Genocide Convention (Bosnia and Herzegovina v Serbia and Montenegro) – also the Genocide Convention, States are prohibited from committing genocide,[3] as distinguished terminologically by the Court from the crime of genocide.[4] In the further view of the Court, they are equally prohibited under the Convention from committing the ‘acts’[5] ancillary to genocide also enumerated in Article III of the Convention. Breach of any these prohibitions gives rise to the responsibility under international law of the State in question, a responsibility which, like all State responsibility, is delictual, not criminal, in character.[6] Genocide for the purposes of State responsibility is nonetheless defined, according to the ICJ, as per the definition of the crime of genocide in Article II of the Convention. To be responsible for breach of the prohibition on genocide, a State must perform one of the five acts specified Article II ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. In short, it must act with a certain state of mind.
Unlike an individual, a State is a juridical, not natural, person. It is a legal construct, not a living being. As such, it has no mind in any real sense. Moreover, a State is a collective entity. It is the notionally indivisible legal personification of the myriad other entities, including the governmental organs, and the individuals that as a social and constitutional reality comprise it. If one is to ascribe to a state a mind for the purpose of the State’s commission of genocide, the problem is where to find it.
Locating the mind of a State is seldom necessary. As a matter of the secondary rules of State responsibility, breach of obligation is independent of fault and, even more so, of intention.[7] The standard of conduct required of a State depends instead on the primary obligation,[8] and it is very rare that a primary obligation can be breached by a State only with intent.
The question in the end is whether genocidal intent is to be ascribed to a State on the basis of the customary international rules on attribution of conduct to a State or on some other basis. The answer given by the ICJ in Bosnia v Serbia and again in Application of the Genocide Convention (Croatia v Serbia) is that such intent is to be ascribed on the basis of the rules on attribution of conduct to a State. But whether this answer is convincing is open to discussion. The matter is not without importance, given that the question may be aired again in, variously, the proceedings and potential proceedings on the merits in the four cases now before the Court alleging breach of the Genocide Convention’s prohibition on a State’s commission of genocide.[9]
The present article reflects on the approach to locating a State’s genocidal intent adopted by the ICJ in Bosnia v Serbia and Croatia v Serbia, as well as on an alternative to it.[10] The focus is on State responsibility for the commission of genocide, rather than for complicity in genocide or for any of the other ‘acts’ ancillary to genocide enumerated in Article III of the Genocide Convention.
2. The ICJ’s approach
In Bosnia v Serbia, the ICJ ‘affirms’:
By ‘commits any of the acts proscribed by Article III’ what the Court evidently means is ‘commits, with the requisite specific intent, any of the acts proscribed by Article III’,[12] which is to say commits the crime, not just the actus reus, of genocide, complicity in genocide, and so on. The Court elaborates – in a dictum reiterated in Croatia v Serbia[13] – that, ‘if a State is to be responsible because it has breached its obligation not to commit genocide, it must be shown that genocide as defined in the Convention’, by which the Court must be taken to intend the crime of genocide as defined in the Convention, ‘has been committed’.[14]
Subsequently, in Croatia v Serbia, the ICJ speaks – again in the context of State responsibility for breach of the obligation not to commit genocide – of ‘acts [of genocide], attributable to the State, committed’, necessarily with specific intent, ‘by a person or a group of persons whose individual criminal responsibility has already been established’ by a competent criminal court or whose commission of acts of genocide, with the necessary specific intent, the Court itself determines.[15] ‘In either of these situations’, the Court explains, it ‘applies the rules of general international law on the responsibility of States for internationally wrongful acts’,[16] the reference being to the rules on attribution of conduct to a State. In other words, ‘[i]f it is established that genocide’, evidently meaning the crime of genocide as defined in Article II of the Genocide Convention,[17] ‘has been committed, the Court will then seek to determine the responsibility of the State, on the basis of the rules of general international law governing the responsibility of States for internationally wrongful acts’,[18] specifically the rules on attribution.
In both cases, the ICJ examines the evidence before it to determine whether acts of genocide were committed with the requisite specific intent by persons or groups of persons. In the event, only in the first case and only then in relation to the massacres at Srebrenica by Bosnian Serb paramilitaries – amounting to one of the five acts specified in Article II of the Genocide Convention – does the Court find established the specific intent necessary to enable it to conclude that the massacres ‘constituted the crime of genocide within the meaning of the Convention’,[19] as referred to in Article III(a). The Court goes on to ask ‘whether the massacres committed at Srebrenica during the period in question, which constitute the crime of genocide within the meaning of Articles II and III, paragraph (a), of the Convention, are attributable, in whole or in part, to the Respondent [State]’,[20] ultimately concluding in the negative.
According, then, to the ICJ’s reasoning, the specific intent on the part of a State required for that State’s responsibility for breach of its obligation not to commit genocide is to be found in the mind of any person individually responsible for the crime of genocide whose conduct is attributable to the State in that instance. Implicitly characterizing as the ‘conduct’ for the purpose of the rules on the attribution of conduct to a State not just the person’s actus reus but also the mens rea accompanying it, the Court attributes to the State not only the person’s bare acts but also his or her mental State. A State is deemed to act ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ if any person whose acts are attributable to the State in that instance acts with that intent. The mind of any such person is deemed the mind of the State.
3. A convincing approach?
The ICJ’s approach to locating the genocidal intent of a State is by no means implausible. There is no inherent reason why the ‘conduct’ of a person, within the meaning of the rules on attribution of conduct to a State set out in chapter II of Part One of the International Law Commission (ILC)’s Articles on Responsibility of States for Internationally Wrongful Acts, cannot refer to both the person’s act and its accompanying mental state. Conceptually, moreover, if a State is taken to act through the limbs, as it were, of any person whose conduct is attributable to it in that instance under the law of State responsibility, it is not immediately apparent why the State should not be taken in the same instance to intend through the mind of that person.
At the same time, nothing compels the Court’s approach. On the contrary, in the terminological hermeneutics of the rules on attribution of conduct to a State in the Articles on Responsibility of States, the fact that ‘conduct’ of a person or entity shall be considered an ‘act’ of the State could be understood to imply that the notion of ‘conduct’ is limited to the person’s bare act, which is to say the act shorn of its accompanying mental state. In the context of State responsibility for breach of the obligation not to commit genocide, this would encompass solely the actus reus, and not also the mens rea, of the crime of genocide, complicity in genocide or the like, as committed by the person. Indeed, it would seem that the reason why the ILC, in the rules on attribution in the Articles, did not provide simply that an ‘act’ of a person shall be considered be an ‘act’ of the State is that a person’s omissions, and not just acts in the narrow sense, are equally capable of being considered an ‘act’ of the State. The term ‘conduct’ in chapter II of Part One of the Articles is shorthand for ‘conduct consisting of an act or omission’, as formulated more fully in Article 2.[21] The argument for excluding a person’s mental state from the scope of the term ‘conduct’ in chapter II of Part One is lent further weight by the fact that conduct not only of natural persons but also of entities, which is to say municipal legal persons, is capable of being considered an act of the State under the rules on attribution.[22] While natural persons are possessed of real mental states, municipal legal persons – just like the international legal person of the State – are not. These points taken together might be thought to suggest that the purpose of the customary international rules on attribution of conduct is the attribution to the international legal person of the State of merely the bare acts and omissions of natural and municipal legal persons and not also, in the case of natural persons, the mental state accompanying any such act or omission. The implication could be said to be the stronger for the fact that neither intent nor legally-relevant knowledge on the part of a State is a general condition of State responsibility.[23]
Conceptually, furthermore, there is arguably a meaningful difference between a State’s arms, legs, hands, feet, fingers and toes, so to speak, and its mind. It seems more intuitive to conceive of the mind, and with it the intent, of the anthropomorphic construct of the juridical person of the State as residing in some central decision-making organ or cluster of such organs, rather than in each and every organ of State, let alone in persons or entities other than State organs whose conduct is nonetheless attributable under the law of State responsibility to the State in that instance. An intuition of the sort is arguably reflected in the customary international rules relating to the representation of the State in its international relations.[24] It is generally only the government of the State and persons authorized by it to this end, not every organ of State as understood for the purposes of State responsibility, that is taken to speak on behalf of the State in its international relations.[25] Yet an analogous intuition is not reflected in the ICJ’s approach to the genocidal intent of a State. By way of illustration, take the following hypothetical scenarios.
First, the government of a State engaged in an armed conflict issues formal instructions to its regular armed forces, instructions backed in practice by unambiguous orders from the military high command, not to kill members of a particular religious group apart from those qualifying as combatants or as civilians taking direct part in hostilities. Contrary, however, to these instructions and orders, soldiers belonging to one regular military unit of the State, each acting in that capacity and with the intent to destroy the religious group as such at least in substantial part, intentionally kill 5000 members of that group. In accordance with the customary international rules on attribution of conduct to a State codified in Articles 4 and 7 of the Articles on Responsibility of States, the acts of the soldiers are considered acts of the State, despite being contrary to instructions, and there are good policy reasons for this.[26] But intuitively we may well think that the soldiers’ acts do not reflect the intent of the State, as arguably better looked for in the instructions issued by the government, as backed by the orders from the military high command. Under the ICJ’s approach, nonetheless, the State is deemed to have acted with the intent to destroy the religious group as such in part and bears responsibility for breach of its obligation not to commit genocide.
Secondly, the government of a State directs a non-State paramilitary group to execute 5000 civilians, in retaliation for their electoral support for an opposition political party. All 5000 civilians happen to be members of the same ethnic group, but the government has no intent to destroy the group as such,[27] either in whole or in part. The paramilitaries, however, following the government’s directions to the letter, assume that the executions form part of a plan on the part of the government to destroy the group as such at least in part, and they intend their acts to do the same. Under the customary international rule on attribution of conduct to a State codified in Article 8 of the Articles on Responsibility of States, the acts of the paramilitaries are considered acts of the State. But our intuition may well be that it is not right to attribute to the State the paramilitaries’ genocidal intent when the government of the State, which directed their acts, lacked any such intent. Nonetheless, on the ICJ’s approach, the intent of the paramilitaries is deemed the intent of the State, which is consequently responsible for breach of its obligation not to commit genocide.
In neither of these two scenarios or in any analogous to them is the outcome obviated by the ICJ’s approach to establishing on the basis of circumstantial evidence the genocidal intent of a person who commits an act set forth in Article II of the Genocide Convention. In Bosnia v Serbia, the Court accepts in principle that the intent of a person to destroy a protected group as such in whole or in part can be established by recourse to the existence, ‘convincingly demonstrated’, of a ‘general plan to that end’,[28] which is to say a plan embodying ‘the specific intent (dolus specialis) of those directing the course of events’.[29] A collateral consequence is that, in the event that the conduct, which includes the mens rea established by recourse to the plan, of the person is attributable to the State, the State may end up responsible for genocide on the basis of a specific intent deriving in substance from ‘the intent of higher authority … at the level of the [g]overnment’ of that State[30] – what is later referred to succinctly, if question-beggingly, in Croatia v Serbia as ‘a State plan expressing the intent to commit genocide’.[31] But this does nothing to alter the fact that, in the converse situation of the absence of intent on the part of the government of the State to destroy in whole or in part a protected group as such, the State can be responsible for genocide, in accordance with the ICJ’s reasoning on locating the genocidal intent of a State, on the basis of a specific intent on the part of the person who commits the impugned act which owes nothing to that government.
In sum, then, according to the ICJ’s approach, the specific intent on the part of a State required for that State’s responsibility for breach of its obligation not to commit genocide is furnished by the specific intent of any person individually responsible for the crime of genocide whose conduct is attributable to the State in that instance. This approach reflects an application of the customary international rules on attribution of conduct not only to the person’s bare act but also to the mental state with which it is committed. Although certainly one way of looking at it,[32] the Court’s, however, is not the only way. Nor does it reflect what is arguably the intuition that the intent of a State as a juridical person corresponds to the intent of the competent, central decision-making organ or organs of that State.[33] An approach to locating the genocidal intent of a State that speaks to this intuition – while accepting that the bare acts specified in Article II(a) to (e) of the Genocide Convention could each be attributed to the State on any customary basis of attribution – would attribute to the State the specific intent only of that organ or those organs.
On this second, alternative approach, where the competent, central decision-making organ or organs of State do not possess the intent to destroy in whole or in part – through the acts of organs of State or of persons acting on the instructions or under the direction or control of organs of State – a protected group as such, the State would not breach the prohibition on the commission by a State of genocide. This would be so, and this is the gist of the difference, even where persons whose conduct is attributable to the State commit one or more of the acts in Article II(a) to (e) of the Genocide Convention with the requisite specific intent, thereby committing the crime of genocide. In contrast, where the competent, central decision-making organ or organs of State do possess this specific intent, which is put into action by means of acts specified in Article II(a) to (e) of the Genocide Convention carried out by organs of State or by persons acting on the instructions or under the direction or control of organs of State, the State would be responsible for committing genocide. The latter would be so regardless of whether the specific intent on the part of the competent, central decision-making organ or organs of State were shared by the persons who carry out the acts in Article II(a) to (e) through which that organ or organs intend to destroy in whole or in part the group as such. In other words, the State would breach the prohibition on the commission by a State of genocide even though the persons who carry out the relevant acts do not commit the crime of genocide. Precisely which organ or organs constitute the competent, central decision-making organ or organs of State in any instance will depend on the State and the acts in question.
The alternative approach to locating the genocidal intent of a State demands in effect, although not as a formal material element of the definition of genocide, that the relevant acts attributable to the State be performed pursuant to some sort of policy – formal or informal, explicit or implicit – reflecting the intent of the competent, central decision-making organ or organs of State ‘to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.[34] (This is not the case, in contrast, when the question is whether a person is individually responsible for the crime of genocide,[35] even if the existence of a policy may be evidentially useful in establishing the person’s specific intent.[36]) Where not otherwise established, the existence of a policy of some sort embodying the specific intent of the competent, central decision-making organ or organs ought logically to be provable by inference from a pattern of conduct where, but only where, ‘this is the only inference that could reasonably be drawn from the acts in question’.[37]
4. Conclusion
Where to locate the intent of a juridical person is a problem with which those bodies of national law that recognize corporate criminal responsibility similarly wrestle. In that context too the more or most convincing answer continues to be debated.[38] At the same time, it is not necessarily the case that solutions suited to the criminal liability under national law of, most commonly, a company will be suited to the delictual responsibility under international law of a State.
At root the difficulty in the context of State responsibility for genocide lies perhaps less in the ICJ’s approach to locating a State’s genocidal intent than in the more fundamental proposition advanced by the Court in Bosnia v Serbia, as affirmed, that the definition of genocide for the purpose of the prohibition on its commission by a State is identical to the definition of the crime of genocide in Article II of the Genocide Convention. From the perspective of the Court in its judgment, the proposition is necessitated by its doubtful[39] ruling that the Convention itself prohibits States from committing genocide. The upshot of the asserted commonality of definition is that, in order to breach the prohibition on the commission by a State of genocide, a State – despite being a juridical, not natural, person – must be said to possess intent, namely the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. This positing of a mental element as a condition of State responsibility sets the prohibition on the commission by a State of genocide apart not only from the overwhelming majority of primary obligations on States but also, more particularly, from those obligations on States with counterparts in crimes under international law. While intent is generally a condition under international law for individual criminal responsibility for a war crime, a State can violate the laws of armed conflict unintentionally. Similarly, although individuals cannot be responsible under international law for the crime of aggression unless they commit the relevant act with intent, no intent is required for a State to violate the prohibition on its commission of aggression. Nor is there any necessary reason why the definition of genocide for the purpose of the undoubted prohibition under customary international law, rather than the Genocide Convention, of the commission by a State of genocide need be identical to the definition of the crime of genocide, with its requirement of specific intent, in Article II of the Convention.[40] Indeed, in the pre-Convention General Assembly resolution 180 (II) of 21 November 1947, in which the Assembly declares that ‘genocide is an international crime entailing … international responsibility on the part of … States’, no definition of genocide is given and it is not clear whether specific intent is envisaged.
That said, even in the context of the prohibition on the commission of genocide by a State, it is difficult to conceive of a definition of genocide shorn of the intent ‘to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. This specific intent is seemingly inescapably the essence of genocide as a concept. If one accepts that – whether under customary international law, the Genocide Convention or both – States are prohibited from committing genocide, one appears bound to accept that they violate the prohibition only if they act with such intent. The question then inevitably becomes where to locate this intent.
According to the ICJ, the specific intent on the part of a State required for that State’s responsibility for breach of its obligation not to commit genocide is to be found in the mind of any person individually responsible for the crime of genocide whose conduct is attributable to the State in that instance. On an alternative approach, the State’s requisite genocidal intent would be sought instead solely on the part of the competent, central decision-making organ or organs of that State. While it is unlikely that the Court will change its approach, only future judgments will tell.
* Full Professor of International Law, Bocconi University. This article is based on presentations given respectively at the University of Bologna Alma Mater Studiorum on 5 April 2024 and the University of Padua on 27 May 2024.
[1] Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (hereafter ‘Genocide Convention’). For whether the Genocide Convention itself prohibits the crime of genocide or instead simply ‘confirms’, as per art I, that genocide is a crime under customary international law, see R O’Keefe, International Criminal Law (OUP 2015) 234-5.
[2] These acts are: ‘(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’ Although the requirement is explicit only in para (c) of art II of the Genocide Convention, these acts must be committed intentionally in order to ground individual responsibility for the crime of genocide. See eg Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment ICJ Rep 2007, 43 (hereafter ‘Bosnia v Serbia’) 121 para 186.
[3] See Bosnia v Serbia (n 2) 113-14 paras 166-167, 118-19 para 179.
[4] See eg ibid. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) Judgment ICJ Rep 2015, 3 (hereafter ‘Croatia v Serbia’) sep op Skotnikov 199-200 para 12.
[5] The consistent reference of the Court in the context of State responsibility, taking its cue from art IX of the Genocide Convention, is to the other ‘acts’, not other ‘crimes’, in art III.
[6] See especially Bosnia v Serbia (n 2) 115 para 170.
[7] Commentary to draft articles on responsibility of States for internationally wrongful acts (2001) II/2 YB Intl L Commission 31 (hereafter ‘Commentary to articles’) 36, commentary to art 2 para 10.
[8] ibid.
[9] See ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) General List No 178; Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) General List No 182; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) General List No 192; Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v Germany) General List No 193.
[10] For other consideration of these or closely related issues, see A Nollkaemper, ‘Concurrence between Individual Responsibility and State Responsibility in International Law’ (2003) 52 ICLQ 615, 633-5; M Milanović, ‘State Responsibility for Genocide’ (2006) 17 Eur J Intl L 553, 567-9, 574, 601-2; P Gaeta, ‘On What Conditions Can a State Be Held Responsible for Genocide?’ (2007) 18 Eur J Intl L 631, 637, 641-4; AB Loewenstein, SA Kostas, ‘Divergent Approaches to Determining Responsibility for Genocide. The Darfur Commission of Inquiry and the ICJ’s Judgment in the Genocide Case’ (2007) 5 J Intl Criminal Justice 839; B Bonafé, The Relationship between State and Individual Responsibility for International Crimes (Brill 2009) 119-45; A Seibert-Fohr, ‘State Responsibility for Genocide under the Genocide Convention’ in P Gaeta (ed), The UN Genocide Convention. A Commentary (OUP 2009) 349, 367-8; WA Schabas, Genocide in International Law. The Crime of Crimes (2nd edn, CUP 2009) 518; R Pisillo Mazzeschi, E Carli, ‘Proof of Specific Intent in the Crime of Genocide. The Case of South Africa v. Israel Before the International Court of Justice’ (2024) 22 J Intl Criminal Justice 429, 440-1, 443.
[11] Bosnia v Serbia (n 2) 119 para 179. See also ibid 113-14 paras 166-167.
[12] This is evident from the fact, inter alia, that the first ‘act’ listed in art III of the Genocide Convention is genocide itself, and genocide is defined in art II as requiring specific intent. Consider also, inter alia, the identity drawn between the finding, ibid 166 para 297, that the massacres at Srebrenica constituted ‘acts of genocide’, as well as the reference, ibid 199 para 379, 201 para 384, to the same, and the reference, ibid and ibid 214 para 413, to the same acts as ‘the crime of genocide’.
[13] See Croatia v Serbia (n 4) 61 para 128.
[14] Bosnia v Serbia (n 2) 119 para 180.
[15] Croatia v Serbia (n 4) 61 para 128.
[16] ibid.
[17] This is clear not only from the preceding context but also from the Court’s immediately subsequent highlighting, ibid 61-2 para 130, of the definition of the crime of genocide in art II of the Genocide Convention, in which, furthermore, the Court states that, ‘[a]ccording to that Article, genocide contains two constituent elements: the physical element, namely the act perpetrated or actus reus, and the mental element, or mens rea.’
[18] ibid 61 para 129.
[19] Bosnia v Serbia (n 2) 199 para 379. See also ibid 214 para 413.
[20] ibid 201 para 384.
[21] Articles on Responsibility of States for Internationally Wrongful Acts, UNGA Res 56/83 (12 December 2001) Annex (hereafter ‘Articles on Responsibility of States’) art 2 (‘There is an internationally wrongful act of a State when conduct consisting of an act or omission …’). See also Commentary to articles (n 7) 35 commentary to art 2 para 4.
[22] See Articles on Responsibility of States (n 21) arts 4(2), 5, 7. See also Commentary to articles (n 7) 42 commentary to art 4 para 12.
[23] See Commentary to articles (n 7) 36 commentary to art 2 para 10.
[24] Consider also in this light L Condorelli, Claus Kreß, ‘The Rules of Attribution: General Considerations’ in J Crawford et al (eds), The Law of International Responsibility (OUP 2010) 221, 223: ‘[C]onduct giving rise to international responsibility entails legal consequences which in no way correspond to the aims of the State to which the conduct is attributable, while conduct which manifests the consent of a State to be bound on the international plane produces, at least in principle, precisely this effect.’
[25] See generally N Pavlopoulos, The Identity of Governments in International Law (OUP 2024) 24-30 and references therein.
[26] See eg Commentary to articles (n 7) 45, commentary to art 7, paras 2, 3.
[27] The qualification ‘as such’ connotes that the intent must be to destroy the group in its quality as that group. It is insufficient to intend to destroy members of the group only in their capacity as specific or random individuals. See eg Prosecutor v Niyitegeka, ICTR-96-14-A, Appeals Chamber Judgment (9 July 2004) para 53.
[28] Bosnia v Serbia (n 2) 196-7 para 373. See also Croatia v Serbia (n 4) 66 para 145.
[29] Bosnia v Serbia (n 2) 195 para 371. It is worth underlining that the apparent object of ascertaining the existence of a general plan embodying the specific intent of ‘those directing the course of events’ is to establish that the persons who committed relevant acts pursuant to this plan did so themselves with specific intent, with the consequence that they committed the crime of genocide. (The question is then whether these persons’ ‘conduct’, viz acts accompanied by specific intent, is attributable to the State so as to render the State responsible for genocide.) The object of ascertaining the existence of a plan appears not to be to ascertain directly the specific intent of the State itself. This is sufficiently evident from the overall context, especially as framed ibid 142 para 242, as well as more specifically from the introduction, ibid 194 para 370, to the pertinent passage, from the reference, ibid 199 para 379, to ‘the crime of genocide’, and from the fact (see n 30) that the relevant plan could be one on the part of the leadership of a non-State group or entity. The Court nonetheless muddies the waters by noting, ibid 195 para 371, that the objectives defined in the plan of the leadership of the non-State Republika Srpska were shared by the head of State of the respondent State and by referring, ibid 198 para 376, to specific intent ‘on the part of the Respondent’, as opposed to ‘on the part of the government of the Respondent’ or the like. The apparent object of ascertaining the existence of a general plan is similarly evident in Croatia v Serbia (n 4) 61-2 paras 128-130, 118 para 402, as is the blurring of this object, ibid 65-6 paras 143, 145, and 148-50 paras 504-507.
[30] Bosnia v Serbia (n 2) 195 para 371. Note that a general plan capable of furnishing circumstantial evidence of the genocidal intent of any person who commits an act specified in art II of the Genocide Convention need not be one on the part of the government of the State but can instead be one on the part of, for example, the leadership of any non-State paramilitary group to which the person may belong or of any non-State political entity on whose behalf that group may fight. See eg ibid. In the latter two situations, in the event that the conduct of the person is attributable to the State, the State will end up responsible for genocide on the basis of a specific intent deriving in substance from the intent of the leadership of the non-State paramilitary group or political entity, rather than of the government of the State.
[31] Croatia v Serbia (n 4) 66 para 145.
[32] For support for the approach taken, in the event, by the Court, see eg Milanović (n 10) 567-9, 574, 601-2.
[33] For support for an approach along these lines, see Pisillo Mazzeschi, Carli (n 10) 440-1, 443.
[34] See similarly Gaeta (n 10) 643; Schabas (n 10) 518.
[35] See, among others, Prosecutor v Jelisić, IT-95-10-A, Appeals Chamber Judgment (5 July 2001) para 48; Prosecutor v Simba, ICTR-01-76-A, Appeals Chamber Judgment (27 November 2007) para 260.
[36] Jelisić (n 35) para 48.
[37] Croatia v Serbia (n 4) 67 para 148, 122 para 417, adding a gloss to Bosnia v Serbia (n 2) 197 para 373. Note, however, that in these cases the inference sought was of the specific intent of the persons who committed the relevant acts, which, if proved, would have established their commission of the crime of genocide. The question was then whether this ‘conduct’ was attributable to the State in question. The argument advanced in the text relates to proof of the existence of a policy reflecting – and this is the ultimate question – the specific intent of the State, in the form of the specific intent of its competent, central decision-making organ or organs of State. For the latter, see eg Croatia v Serbia (n 4) separate opinion Gaja 396 para 3.
[38] See eg, among many others, BP Edwards, ‘What Is a Corporate Mind? Mental State Attribution’ in MJ Durkee (ed), States, Firms, and Their Legal Fictions. Attributing Identity and Responsibility to Artificial Entities (CUP 2024) 197; PS Abril, A Morales Olazábal, ‘The Locus of Corporate Scienter’ (2006) Columbia Business L Rev 81; ME Diamantis, ‘Corporate Criminal Minds’ (2016) 91 Notre Dame L Rev 2049.
[39] See eg O’Keefe (n 1) 80; Gaeta (n 10) 632-40.
[40] See also Gaeta (n 10) 637, 641-4.