'Contextual elements' of the crime of genocide
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Date
24/11/2016Item status
Restricted AccessEmbargo end date
31/12/2100Author
Koursami, Nasour Ibrahim-Neguy
Metadata
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.