| Popis: |
This chapter focuses on the nature, inherent characteristics, and difficulties of the concept of ‘contextual elements’ in the crime of genocide. It reverts to the origin of the concept of context and its elements and uses in relation to international crimes in general, through exploration of the concept itself and its different roles. In light of a lack of any reference to an objective circumstantial threshold for the crime of genocide, the chapter groups the suggested contextual elements of genocide into three identifiable elements—genocidal pattern, scale and magnitude, and plan or policy—that are deemed to be inclusive of all the other elements. It soon becomes clear that there is little indication or unified meaning in academic writing and judicial reasoning as to what exactly contextual elements of genocide are, leading to a divergence of views and meanings, leaving the constituent boundaries of the concept of context difficult to define with any degree of certainty required in criminal law. The chapter concludes by presenting the raison d’etre and the position of contextual elements among the core international crimes in general. It is found that there is an uncritical acceptance of the idea that contextual elements are what makes those crimes international, ignoring the fact that the interstate consent is what justifies the imposition of international jurisdiction. For certain crimes, States consented to extend jurisdiction based on the context of their occurrence as opposed to genocide where the specific intent is used instead, but such justification has now gained credibility in respect of genocide as a jurisdictional element within the new Rome Statute’s regime. |
