Challenges to criminalising state responsibility for genocide are persistent and consequential. Lack of such criminalisation is responsible for the repeated occurrence of the worst crime known to humankind, genocide. It is due to the structural nature of the problem, and its deeply political character, that not much is said and written about this issue in academia and even less so in policy circles.
Professor Kevin Aquilina provides a balanced academic analysis of this problem from the point of view of international criminal law in a chapter of a new book published with Oxford University Press entitled Postgenocide: Interdisciplinary Reflections on the Effects of Genocide (2021) edited by Dr Klejda Mulaj, an academic of the University of Exeter, UK.
One key pillar of the postgenocide space consists of legal responses to genocide and laws that ground such responses.
Professor Kevin Aquilina’s chapter argues that although more often than not, states are parties in a genocidal enterprise, the centrality—and responsibility—of states for genocide has not received attention commensurate with the severity of this heinous crime.
His analysis highlights the failure of the international community to hold implicated states criminally responsibility for the crime of crimes. Underscoring difficulties at proving state criminal responsibility for the crime of state of genocide, his work compares and contrasts individual criminal responsibility and state criminal responsibility for genocide. Whereas in the former case the matter has been dealt with by domestic and international criminal courts and tribunals, in the latter instance there is no international judicial authority which can try states for criminal responsibility.
Professor Aquilina observes that the state enjoys far more privileges than the individual, and from an examination of international criminal genocide law and practice, he concludes that states are virtually untouchable. His analysis suggests, however, that non-state corporate criminal liability, and how this institute has evolved in international criminal law, may provide some transferable lessons for state responsibility for genocide. With this view it considers the forms of criminal punishment inflicted upon a legal person and identifies in addition thereto other corresponding penalties which can be inflicted upon states for criminal responsibility.
Considering stumbling blocks at finding states criminally responsible and liable, Professor Aquilina highlights the nexus between individual responsibility and state responsibility, and the failures of international genocide law in establishing state responsibility for genocide. Whilst state primacy is frequently challenged in the discipline of International Relations, this is rarely the case in the law of genocide and its praxis. Yet, as Professor Aquilina’s analysis suggests, there are actions that the international community can take to punish those states criminally responsible for genocide. This is imperative for the promise of ‘never again’ to be given a chance to materialise.
Reference for Professor Aquilina’s chapter is as follows: Kevin Aquilina, ‘Challenges to Criminalizing State Responsibility for Genocide’, in Postgenocide: Interdisciplinary Reflections on the Effects of Genocide, Edited by Klejda Mulaj, Oxford and New York: Oxford University Press, 2021, pp. 33-62. Further information is available online.