War, Genocidal Intent, and the ‘Only Reasonable Inference’

Abstract Genocide is notorious, not only for the horror it encapsulates, but also, from a legal perspective, for the perceived difficulty of proving individual criminal responsibility for its commission. A certain mystique attaches to the notion of genocidal intent, driven in no small part by the fact that evidence of intent is often largely predicated on inferences from circumstantial evidence. This has given rise to an important debate with respect to the application of the ‘only reasonable inference test’ in the determination of genocidal intent through inferences from circumstantial evidence. This article offers reflections on the role and purpose of inferential reasoning in the specific context of international criminal proceedings, with a particular focus on reasoning from inferences in relation to genocidal intent arising in situations of armed conflict. Understanding the role and practical operation of inferential reasoning in determinations of fact, its relationship with the standard of proof for criminal conviction, and, in particular, the general applicability of the only reasonable inference test when establishing facts on the basis of circumstantial evidence, is critical to appreciating the challenges encountered when attempting to establish genocidal intent. In this regard, following an exploration of extant jurisprudence, attention is given to the typology of various inferential indicators of genocidal intent connected with armed conflict contexts that have been considered, as well as those indicators identified as potentially giving rise to other reasonable inferences. The article concludes with the observation that ultimately what is in need of reform is not the method of reasoning from inferences, but rather the perception that genocide is exceptional in human affairs.