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The Australian National University

State Responsibility and Genocidal Intent: A Three Test Approach

Robin M Smith Vol 34 (2016)

Establishing genocidal intent is vital in determining whether genocide has been committed. However, ascribing intent, and more particularly the specific intent required for genocide, to an abstract entity such as a state is fraught with difficulty. This article seeks to identify the approach by which genocidal intent will be ascribed to a state. State responsibility for genocide has been considered on three occasions. In 2005, the International Commission of Inquiry on Darfur examined whether or not the Government of Sudan had perpetrated genocide. The International Court of Justice (ICJ) has handed down two decisions on the issue, the Bosnian Genocide Case in 2007 and the Croatian Genocide Case in 2015. By consolidating the three decisions, this article identifies an approach for ascribing genocidal intent to the state using three alternate tests: intent established through a ‘concerted plan’, intent inferred from a ‘consistent pattern of conduct’, and intent ascribed pursuant to the Articles on State Responsibility. The article is divided into three parts. The first part considers the ascribing of intention to a state generally. The second section turns to the specific issue of ascribing genocidal intent to the state and examines the two ICJ decisions and the Darfur Commission Report in detail. The final section then seeks to develop the definition of a concerted plan, how such a plan is to be ascribed to the state and the relationship between the test establishing intent through a concerted plan, and the test inferring intent from a consistent pattern of conduct.

Vol 34 (2016)

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Updated:  19 October 2016/Responsible Officer:  Australian Year Book of International Law Director/Page Contact:  AYBIL Web Publisher