'Contextual elements' of the crime of genocide

Abstract

According to the literal interpretation, the crime of genocide is characterized by an individualistic intent to destroy a group, unlike other international crimes where contextual elements such as the need for plan or policy, or pattern of similar acts, or collective campaign and magnitude are explicitly required as constitutive elements. This thesis, therefore, examines whether ‘contextual elements’ are constitutive elements of the crime of genocide. In particular, it will examine the evolution and the current state of the definition of genocide, to determine the extent to which an individual génocidaire is required to act within a particular genocidal context. This thesis will examine and trace the historical development of the crime of genocide from its inception as an academic concept to the attainment of an autonomous legal character as a crime. It is argued that, during this period, the concept of genocide was akin to the current definition of crime as used in the social sciences. Hence, contextual elements were tacitly perceived and considered as a constitutive part of the concept; therefore, any reference to this period is of little help in the determination of the current status of the contextual element. In addition, it is found that upon codification of the notion of genocide, deliberate efforts were made to depart from the old concept by putting the subjective side of the crime at the centre. Thus, the thesis finds, on the basis of prevailing case law, that today’s dilemma over the crime of genocide originates from the difficulty to separate the concept from its past. This has led, in turn, to the existence of a vague and unsound legal stance on the contextual elements of genocide when the definition is applied to specific cases; therefore, the legal examination of the definition has produced an inconsistent approach bordering on illegitimate law making, especially in the cases of the ad hoc tribunals, by failing to balance the interpretation requirements on the one hand and the requirements of legality and consistency on the other. The thesis also establishes that the protracted debate for inclusion of the contextual elements as legal ingredients of the crime is sustained by this inconsistency. The thesis further evaluates the contextual elements in the light of the new regime of the Rome Statute and its ‘Element of Crimes’ which explicitly require the accused to act in a ‘context of manifested pattern of similar conduct’, but analysis of this requirement reveals that this is only a jurisdictional element to limit the case flow to the International Criminal Court. This research critiques the ‘contextual elements’ and the need for them and concludes with a new case for the assessment of this context as, first, a jurisdictional element and second, necessary on two other occasions: when alleging the existence of the crime of genocide in general and in cases of liability for participation and inchoate offences.