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Saira Mohamed

Abstract

Despite the pervasive involvement of government bureaucracies in perpetrating genocide and other atrocities, the international community's efforts to assist societies emerging from these horrors have relied primarily on establishing the guilt of individuals in criminal tribunals, rather than addressing the wrongs committed by governments through other means. The International Court of Justice diverged from this approach to transitional justice when it decided in 2007 that states themselves can be held civilly responsible for committing genocide. Characterizing the decision as reviving the concept of collective guilt in contravention of accepted principles of transitional justice, some warned that holding states responsible for mass atrocity would trigger renewed conflict and prevent peace in societies attempting to recover from violent conflict or mass atrocity. This Article challenges the notion that state responsibility for genocide is incompatible with transitional justice. The jurisprudence of international criminal tribunals reveals that despite the tribunals' mandate to determine the guilt only of individuals, group dynamics play a significant underlying role in prosecutions and convictions. Moreover, holding states responsible for committing genocide contributes to accountability and truth-telling, the professed goals of transitional justice, while criminal trials come up short. When atrocities are committed through the systematic, coordinated actions of a state, contemplating accountability only in relation to the offenses of individuals is imprecise and incomplete. In order to establish meaningful accountability and reveal the truth about a genocide, the state institutions that urged, organized, and facilitated the crimes committed by individuals should be acknowledged and held responsible on their own.

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