Today marks 60 years since the UN convention on the prevention and punishment of genocide was passed for ratification. To date there have been 41 signatories and 140 state parties to the convention.

Over the next month I will post several articles on the convention. In the first of these I will explore the main problem with it: it does not work. The clearest evidence for this comes from Darfur. Since 2004, a genocide has taken place there that has been fully reported in the world’s media and not prevented. The international crisis group is currently warning that there may be a return to mass killing in the Sudan, this time in the southern Kordofan. Sudan has been just one of the frequent recurrences of mass murder since 1948. The convention has not prevented a single instance of genocide.

There are a range of views on why this is so and on the nature of the weakness inherent in the convention’s provisions. In later pieces I will explore the argument that the convention is only as good as the political context in which it operates, but first let us consider the central weakness in the way it is meant to work.

The convention has come to operate through injunctions issued against individuals who have committed crimes. Each part of this formulation is useless in the case of genocide. Though individual responsibility is vital in understanding genocide, this is not a crime that an individual can commit. The issue is brought into sharp focus by the indictment against the Sudanese president Omar al-Bashir. Will this indictment make it less likely that al-Bashir will stop using mass murder as an instrument of politics? But if he is not indicted, what is the point of the international human rights system?
Individual leaders are usually the key to articulating the ideologies of mass murder that justify mass killing. Individuals carry out the killing, but it is only when ideas and individuals are organised and directed by state structures that genocides take place. With very few exceptions, it is states – Iraq, Cambodia, Rwanda – that are recognised by the international community as the entities that direct mass killings. Occasionally, there are groups which operate as states within states, such as the Lord’s Resistance Army in the Democratic Republic of the Congo, that embark on mass killing. I cannot think of a single occasion when a non-state entity carried out a genocidal project of the kind conducted by the Nazi, Soviet, Iraqi, Cambodian, Rwandan or Sudanese states.

In the case of formal states there are structures that conform to the accepted definitions of the state – that entity which enjoys a monopoly of power within a defined locality. They will always have control of the mass media as well. In cases of massacre or violence perpetrated by states within states, often dominating a particular area or areas within a country, they are de facto states that control certain amounts of territory. The point is that it is the control of the political organisations and structures that make the mass killing possible. Though leaders matter hugely in the creation of genocidal situations, genocide is a collective endeavour.

I do not want to take this structural explanation too far. There is great danger in taking the agency of individual perpetrators out of the equation of the crime of genocide. It is a reductive tendency that also allows for versions of the Nuremburg defence – we were only obeying orders, we were powerless, the invisible “they” forced us to act in ways that we did not want. It also allows the lazy application of various versions of imperial or western explanations – genocide takes place in Rwandan because of a history of imperialism or in Sudan because of western oil companies and so on. Context matters in the creation of a genocidal state, but it does not provide an explanation for the actual killing in any of the major post-1948 cases of genocide.

The great virtue of the individual approach to this collective crime is that it demonstrates that it is individuals that are the agents of perpetration. It highlights also that many perpetrators, far from being forced into what they were doing, actually believe in it. We find this disturbing to the point that we seek to deny it. All genocides include a stage of denial that is often political in motivation but can also be about our inability to believe that such crimes are possible. Putting the individual in front of a court and presenting them with the evidence of what they have done renders the crime of genocide legible.

This legibility is an aid to understanding but it does not help with prevention. For that we have to face the very difficult challenge of holding the collective to account, of questioning the sovereignty of the state and of the need for liberal interventionism of several kinds, including military action, in the early stages of perpetration and not after the fact.