When intent makes all the difference in the world: economic sanctions on Iraq and the accusation of genocide.

• Author: Gordon, Joy

In 1990, Iraq invaded Kuwait without provocation. The U.N. Security Council responded by imposing on Iraq the most comprehensive sanctions regime ever deployed in the name of international governance. Twelve years later, the sanctions remain in place despite dubious effectiveness, staggering humanitarian consequences, and ethical objections from peace activists in the United States and Europe, international organizations such as the Red Cross, U.N. agencies such as UNICEF and WHO, and both permanent and nonpermanent members of the Security Council itself.

I would like to examine the fairly provocative claim (made by former U.N. Humanitarian Coordinator Denis Halliday, among others) that the systematic, highly planned imposition of a policy with such devastating effects can rightly be termed genocide. The magnitude of the deaths and of the suffering of the population (including widespread malnutrition, epidemics of diseases that had previously been eradicated, and lack of treatment for many illnesses) is no longer seriously in dispute, although the particular figures vary.

Yet genocide is the largest atrocity of which we can conceive. Is there legitimacy to the claim that the measures imposed upon Iraq contain the elements of such a crime? And if so, how is it possible that genocide could take place under the auspices of international governance? The sheer magnitude of this accusation makes this question urgent.

I will assume throughout this Article that the sanctions on Iraq, although imposed by the U.N. Security Council, also represent U.S. foreign policy.(1) Indeed, while there was initially considerable international support for the sanctions (at least within the Security Council), at this point the United States is nearly alone in its continued support for comprehensive sanctions.(2)

The question that is particularly complicated, under the Convention on the Prevention and Punishment of the Crime of Genocide,(3) is intent. It is an extremely stringent requirement, derived in large measure from the model of the Holocaust and the explicit anti-Semitism that informed the Nazi extermination policies against Jews. The Holocaust atrocities have often been depicted as events whose immorality is irrefutably obvious to any moral and rational person. Such a view has not prepared us to address the large-scale, systematic destruction of an innocent population, the authors of which are not patently "monstrous" or hate-mongering, especially when the rationality and moral legitimacy of these events are defended by well-spoken international leaders using language of neutrality and concern. Under these circumstances, how do we address the matter of intent?

I do not want to diminish the centrality of intent in our conception of genocide. Kant's insistence that the moral content of an act be measured purely by its intent, not by its consequences remains influential.(4) Our moral intuitions, criminal and tort law, and the Kantian ethical tradition all incline us to give significant weight to intent and to attribute considerably greater moral responsibility for intended acts than for unintended ones. We want to say that there is indeed a moral distinction between acts of violence that are driven by a willful hatred and those acts that have identical effects, but contain no such motivation. The intent requirement articulated in the Genocide Convention reflects this intuition.

This notion of intent operates much like that found in the Just War tradition concerning the commission of war crimes. Yet there is a significant difference: there is no sheer quantity of human damage that is sufficient to show genocidal intent. The definition of "intentional" genocide is exceedingly narrow and difficult to prove. As a consequence, the Genocide Convention effectively places no limit on the amount of damage that may be indirectly intended. By contrast, in the context of warfare, the notion of intent that allows for the legality of "collateral damage" puts a limit on the amount of human destruction. It is limited, at least in theory, by the principle of proportionality, which holds that destruction that is indirectly intended (deliberate and planned, but nevertheless "unintended") is permissible, but only up to a point; it can not be disproportionate to the military advantage to be gained from it.

Thus, I will argue, the conception of genocide contained in the Convention has nothing to say about whole categories of atrocities, including some that are deliberate and planned and where the actor knowingly inflicts massive, indiscriminate human damage. There is often a compelling argument for this exclusion: even where the harm is deliberate and massive, aren't there circumstances in which such harm is justified as a means of preventing some greater harm from taking place? But when acts of mass destruction are understood from the outset to bear a thoroughgoing legal and moral legitimacy, then the utilitarian calculation does not make it to the table. The intent problem, I will suggest, informs how we conceptualize genocide--what kinds of things we recognize as atrocities and what we do not even grasp as atrocities, regardless of the magnitude of the damage. Thus, the nature of the intent requirement is such that it not only exculpates certain categories of actors who have committed acts of massive human destruction but also serves to remove the acts altogether from the most important domains of moral and legal judgment, and consequently from the kind of accountability that would permit evidence and reasoned debate over whether in fact such damage will with some certainty be outweighed by the harm prevented.

1. THE NOTION OF INTENT IN THE GENOCIDE CONVENTION

   Article 2 of the Genocide Convention, adopted by the U.N. General Assembly in December 1948 and ratified by the United States in 1988, provides:

   [G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

   (a) Killing members of the group;

   (b) Causing serious bodily or mental harm to members of the group;

   (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part....(5)

   With the Holocaust clearly in mind, the drafters of the Genocide Convention, in particular Raphael Lemkin (who coined the term "genocide"),(6) sought to distinguish between genocide and homicide and to articulate as a new crime under international law the notion of the extermination of an entire people and the obliteration of both their past and present by exterminating their culture, their property, and their children. That this was the intent of the Nazis was clear from their acts, the voluminous documentation of the Final Solution and its plans, and the anti-Semitic propaganda that was disseminated. The original draft of the convention defined genocide as acts that occurred "on grounds of the national or racial origin, religious belief, or political opinion."(7) An attempt to substitute a more inclusive standard failed.(8) One delegate proposed the "as such" language as a substitute, which was accepted, though it hardly offered more clarity.(9) The "as such" language effectively creates a requirement of specific intent, as opposed to ordinary intent.(10) By contrast, in criminal law (at least in Anglo-American law), an actor is presumed to intend the natural and foreseeable consequences of his or her acts.(11) While the presumption may be rebutted,(12) no further evidence is needed to demonstrate intent, so long as the act was not involuntary or unknowing. Thus, in ordinary intent cases, motive is quite irrelevant to demonstrating the elements of the case (although it may, for example, be introduced at the sentencing stage to ask for leniency or to show justification or defenses, such as the defense of necessity):

   One who intentionally kills another human being is guilty of

   murder, though he does so at the victim's request and his motive is

   the worthy one of terminating the victim's sufferings from an

   incurable and painful disease. One who sends an obscene writing

   through the mails is guilty of the federal postal crime of depositing

   obscene matter in the mails, although he is activated by the

   beneficent motive of improving the reader's sexual habits and

   thereby bettering the human race.(13)

   By contrast, specific intent requires that it be shown that an act is motivated by a prohibited motive. In treason, for example, where it must be shown that the purpose of an individual's act was to aid the enemy;(14) and it is also true in hate crimes, where the penalties for assault and battery are higher.(15)

   Specific intent in individual crimes is difficult to prove absent explicit statements on the part of the actor.(16) However, that requirement hardly seems a reliable way of identifying hate crimes. It seems as though a sophisticated perpetrator who wants to avoid prosecution (or at least the enhanced penalties) could be quite successful if he just avoided announcing his motive, while nevertheless planning his crimes as systematically as he wished. The same problem holds in regard to genocide. As Kuper explains: "Governments hardly declare and document genocidal plans in the manner of the Nazis. The intent requirement provides easy means for evading responsibility."(17) Indeed, the Convention's drafters anticipated this particular problem. The representative of the Soviet Union proposed alternative language that would address "acts that resulted in the destruction of groups," and others, particularly the French delegate, argued that such language would guard against the possibility that the intent requirement would be invoked as a pretext to avoid culpability for mass killings on the grounds that the specific intent was absent.(18)

   Intent is a thorny issue in part because of the evidentiary problem. Unless the perpetrator happens to generate racist...