9 - Prosecuting Genocide Amidst Widespread Complicity

Summary

Genocide is a paradigmatic group crime: directed against an entire group and perpetrated by a State or other organized group. But, in addition, genocides rely on widespread cooperation and complicity by many, if not most, members of a given society. Indeed, genocides are so pervasive that sometimes nearly all members of a society in some way participate, or would have participated. This raises a host of conceptual problems for the prosecution of genocide. Criminal trials seek to hold individuals accountable, yet genocide is not an individual crime. William Schabas notes: “At the drafting convention in 1948 for the Genocide Convention, the United Kingdom refused to participate because it felt that the convention approached genocide from the wrong angle, responsibility of individuals, whereas it was really governments that had to be the focus.” In this chapter, I will assess this criticism of genocide prosecutions, as well as the similar criticisms voiced by Hannah Arendt about the trial of Adolf Eichmann when she said: “It is quite conceivable that certain political responsibilities among nations might some day be adjudicated in an international court; what is inconceivable is that such a court would be a criminal tribunal which pronounces on the guilt or innocence of individuals.”

I will focus on the responsibility of individuals for genocide. Genocide involves two parts: (1) some act that promotes the destruction of a group, and (2) “the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.