INTERNATIONAL courts often fail to convict a genocidal actor because legal precedents have read an extremely narrow and heightened intent requirement in the crime of genocide. Yet, the intent requirement is surmountable, and if surmounted in any individual case, it opens up new avenues for the prosecution of those who support genocide.

Relatively recent convictions for genocide include Bernard Munyagishari, Jean Uwinkindi, and Jean-Paul Akayesu in Rwanda; and Radovan Karadzic, Ratko Mladic, and Radislav Krstic in the former Yugoslavia.

Once a particular genocidal actor (typically an individual) has been convicted of genocide, their supporters and facilitators can also be charged with a range of predicate offences.

The charge of a predicate offence applies only if an actor or their acquaintance has committed a specific, related offence — for example, the crime of complicity in genocide. Thus, successful prosecution is an exercise in finding the ‘right’ murderer to prosecute, and then using their conviction as the fulcrum for prosecuting their helpers.

Since genocide is not considered time-barred, the conviction of any public or private Israeli actors for genocide at any future point would open up their enablers to charges of complicity in genocide, which entails a lower intent requirement.

In recent history, complicity in genocide was highlighted as a possible charge against the US for withdrawing forces from Iraq after 2007, on the grounds that Washington’s knowledge that a withdrawal would likely enable Shia attacks on the Sunni minority could fulfil the intent requirement for complicity.

Actors may be complicit even when their purpose might not be to commit genocide.

Article III of the Convention on the Prevention and Punishment of the Crime of Genocide enumerates five punishable acts: “(a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; and (e) complicity in genocide.” Article II defines genocide as the conjunction of a genocidal act with genocidal intent.

A genocidal act may be the killing, serious injuring, forcible transfer of children, forced birth control, or other acts calculated to destroy a protected group. To constitute genocide, such an act must be in accord with genocidal intent, which is the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

The intent element is very difficult to prove and has shielded many genocidal actors from conviction for genocide. As the International Court of Justice reasoned in the 2007 case of ‘Bosnia & Herzegovina vs Serbia & Montenegro’, “It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent.

Something more is required. The acts … must be done with intent to destroy the group as such in whole or in part“. This court-created, hyper-specialised intent requirement is rare in the law, and creates the regrettably permissive approach to the genocidal acts that we see today. Out of the tens of thousands of people who committed genocidal acts privately or as parts of armies, militias, or governments, only 150 had been successfully prosecuted by 2018.

However, even a solitary conviction could be enough, because once an actor has met the high intent requirement for genocide, his enablers can face charges for complicity that are easier to prove.

In the 1998 case of ‘Prosecutor vs Akayesu’, the trial court of the International Criminal Tribunal of Rwanda established that the special intent requirement for genocide does not apply to complicity to commit genocide: “The intent or mental element of complicity implies in general that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence.

In other words, the accomplice must have acted knowingly.“ In law, acting ‘knowingly’ is an objective standard: a person acts knowingly if they knew, or should have known, the consequences of their support. The fact that a person did not foresee these consequences is not a defence if they are objectively ‘foreseeable’.

The lower intent requirement for complicity in genocide means both that such charges are easier to prove and that they apply to a larger group of contributors. Actors may be complicit even when their purpose might not be to commit genocide. And there are many contributors.

Recently, countries have expedited weapons sales to Israel; blocked the movement or denied entry to displaced Palestinians at the Rafah crossing; used their veto power at the Security Council to prolong the slaughter by preventing the passage of a binding resolutions requiring a humanitarian ceasefire; increased military presence in support of Israel in the Middle East; and threatened other actors from intervening to protect Palestinians.

Meanwhile, several NGOs including corporations and non-profit organisations have provided funds or support in kind, to the perpetrators. In these cases, evidence of foreknowledge is copious: the news is replete with the unfolding horror in Gaza, and public protests of each supporting move have been loud and clear.

Under the test of complicity in genocide, many of these public and private actors, and particularly key public and private individuals within them, could be held to account. For the sake of humanity and peace, they should be.

Strictly speaking, the Akayesu precedent also suggests that even without a single conviction for genocide, accomplices could still face the complicity charge: “as far as the Chamber is aware, all criminal systems provide that an accomplice may also be tried, even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, guilt could not be proven”.

Bloodied and bullet-riddled as the international order is, trace memories of right and wrong still survive in international law, even the law relating to genocide. There are reasons, both moral and legal, to hold the enablers of Gaza’s bloodbath to account.

The writers are professors of law at Lums.

Published in Dawn, December 18th, 2023