Abstract:

The crime of genocide is uniquely characterised by the requirement of “intent to destroy”, a term left undefined by the 1948 Genocide Convention. Following initial prosecution of genocides in the 1990s, international jurisprudence has entrenched a purpose-based approach to “intent to destroy”, which requires that an individual perpetrator of genocide acts with a special or purposeful intent to bring about the destruction of a protected group. The purpose-based approach has undermined the core humanitarian goal of the Genocide Convention, being effective prevention and punishment of the crime of genocide. This is mainly due to the difficulty in proving an individual’s purposeful genocidal intent and the legal evidentiary threshold that requires that a perpetrator’s purposeful intent be “the only reasonable inference” from the totality of all available evidence. This article introduces a targeted evidentiary intervention. Recognising that international courts are unlikely to abandon the established purpose-based framework, this article proposes a recalibration of the judicial inferential process itself, where genocidal intent is derived based on the “most reasonable inference” rather than the sole reasonable inference. As such, it presents an immediate, and arguably practical pathway to align the purpose-based approach with the Genocide Convention’s humanitarian mandate to prevent and punish genocide. While shifting the inferential threshold from the
“sole” to the “most reasonable” inference raises related questions such as compatibility with the principle of legality and the rights of the accused, this article focuses strictly on navigating the doctrinal impasse surrounding the term “intent to destroy” in genocide, through the lens of punishment and prevention. The broader implications of transitioning from the “sole” to the “most reasonable” inference standard will form a necessary subject for subsequent, dedicated scholarship.

KEYWORDS: intent to destroy; purpose-based approach; knowledge-based approach; prevention; punishment