| Popis: |
Newly equipped with a lens of collectivist perspective, in this chapter, my analysis begins with expounding the two-layered structure of genocide—that is, the ‘conduct level’ and the ‘context level’. Throughout this chapter, I place an emphasis on the importance of the ‘context level’ for the purpose of individual prosecution of the crime of genocide. I demonstrate that, in the relevant case law of the ad hoc tribunals, a finding of the ‘context level’ as genocidal always precedes the legal consideration of personal conduct and individual genocidal intent at the ‘conduct level’. For the purpose of indicating such genocidal context, I employ the term ‘collective genocide’. By reference to the relevant case law of the ad hoc tribunals, I also show that the existence of ‘collective genocide’ at the ‘context level’ is a quasi-legal requirement of the crime of genocide. Then, providing an overview of the historical development of the substantiality requirement as an interpretation of the term ‘in part’ in the definition of genocide, I argue that the destructive consequence of a substantial part of a group at the ‘context level’ constitutes an essence of the crime of genocide. In doing so, I show the existence and importance of the objective contextual element of genocide. This line of argument constitutes a part of obesity treatment of genocidal intent in that the notion of ‘destruction’ is identified as a crucial objective element of the crime of genocide. Subsequently, I discuss the problematic decision from the ICC Pre-Trial Chamber in Al Bashir in which ‘concrete threat’ was regarded as a legal requirement in relation to the objective contextual element of genocide. Arguing against this position, I point out that the Chamber neglected to give due consideration to the substantiality requirement that inherently carries with it the notion of ‘concrete threat’. In this respect, I argue that the ‘concrete threat’ requirement is redundant. However, I demonstrate the usefulness of ‘concrete threat’ as a proof of ‘collective genocide’ when it is difficult to determine whether a given situation satisfies the substantiality requirement. In the end, I conclude this chapter by explaining the degraded importance of individualistic notion of genocidal intent at the ‘conduct level’, which results from the pivotal role played by the concept of ‘collective genocide’ at the ‘context level’ for the purpose of prosecuting the crime of genocide. |
