L''attribuzione' dell'intento genocidario allo Stato

This article addresses the question whether a State can be held internationally responsible for the commission of genocide under international law on the basis of the attribution to it of the conduct and, most importantly, of the genocidal intent of any individual having the status of organ – as the doctrine of the dual responsibility (of the individual and of the State) for acts of genocide posits; or whether the attribution of genocidal intent to the State operates according to different theoretical and normative assumptions. After surveying and discussing the main theories on the conditions for the rise of State responsibility for genocide, the Author analyses the relevant and most recent international practice on the attribution of genocidal intent to the State. She concludes that the intent which can be attributed to the State is only the intent of those persons, among the State organs, who are in a position to effectively direct the political and military action of the State and who, being in this position, intend to use the State apparatus to carry out a plan or policy aimed at destroying a national, ethnic, racial or religious group. This can be better explained in terms of content of the primary rule prohibiting genocide, rather than of the functioning of alleged special secondary rules on the attribution of conduct to the State. In this sense, genocide turns out to be a ‘leadership’ international wrongful act, although not being a ‘leadership’ crime.