A Collective Theory of Genocidal Intent (International Criminal Justice Series, 7)

Tackling one of the most confusing and controversial issues in the field of international criminal law — i.e., the genocidal intent element, this monograph seeks to develop an account of genocidal intent from a collectivist perspective. Drawing upon the two-layered structure of the crime of genocide composed of the ‘conduct level’ and ‘context level’, it detects the genocidal intent element at the ‘context level’. The genocidal intent found in this manner belongs to a collective, which significantly departs from the prior individualistic understandings of the notion of genocidal intent. The author argues that the crime of genocide is not a ‘crime of __mens rea__’. Collective genocidal intent at the ‘context level’ operates in a way that renders the crime of genocide itself a criminal enterprise. The idea of genocide as a criminal enterprise also suggests that genocide is a leadership crime in respect of which only the high-level actors can be labeled as principals (as opposed to accessories). The book criticizes the dominant individualistic approaches to genocidal intent (in particular: the knowledge-based approach) which have thus far governed the relevant jurisprudential and academic analysis. It further demonstrates that the hidden notion of ‘collective genocide’ silently governs the relevant international jurisprudence. Practitioners and academics in the field of international criminal law and related disciplines will find in this book a new approach to the crime of genocide. The text is the first-ever book-length exposition of a collective account of genocidal intent. Its accessibility is highly enhanced by relevant footnotes.Sangkul Kim is Lecturer at Korea University in Seoul and Research Fellow with the Centre for International Law Research and Policy (CILRAP).He served as Associate Legal Adviser at the Office of the Prosecutor of the International Criminal Court (2004-2008). He earned law degrees from Korea University and Georgetown University Law Center. Acknowledgments 7 Contents 9 1 Introduction 12 References 21 2 A Critique of Individualistic Approaches to Genocidal Intent 23 Abstract 23 2.1 The Traditional Individualistic Understanding of Genocidal Intent: Its Pure Subjectivity 24 2.2 An Overview of the Purpose-Based Approach 28 2.3 An Overview of the Knowledge-Based Approach 32 2.4 Rethinking the Knowledge-Based Approach (I): Some Observations 40 2.4.1 A Hypothetical: An Insomniac Commander 40 2.4.2 Consequence or Context? On Valid Objects of Knowledge 41 2.4.3 Why Principals? A Comparison with Joint Criminal Enterprise and Perpetration by Means 44 2.4.4 Why Knowledge? A Comparison with Aiding and Abetting Genocide 51 2.4.5 Just an Aiding and Abetting Theory? A Wake-Up Call from the Popović et al. Case 58 2.5 Rethinking the Knowledge-Based Approach (II): A Purpose-Based Theory of Individualistic Genocidal Intent 60 2.5.1 ‘Special Intent’: A Matter of IntensityDegree, or of Object? 61 2.5.2 Genocidal Intent as ‘Direct IntentPurposely’ 68 2.5.2.1 The Three-Level Hierarchy of Mens Rea 69 2.5.2.2 Destruction as an ‘Unwanted (or Uninterested) but Permitted Side-Effect’? 74 2.5.2.3 Destruction as a ‘Desired Main Effect’ on the ‘Straight Line of Your Purpose’ 82 2.5.2.4 The Notion of ‘Desire in a Broad Sense’ 86 2.6 Complications and Frustrations: Individualistic Genocidal Intent at the Ad Hoc Tribunals 90 2.6.1 The Akayesu Paradox: Applying the Knowledge-Based Theory to the Purpose-Based Concept of Genocidal Intent? 91 2.6.2 Case Law Claiming the Purpose-Based Approach Doctrinally, but Denying It Evidentially? 94 2.6.3 From Individualistic Intent to Collective Intent 99 References 102 3 Collective Genocide, Contextual Element and Substantiality 107 Abstract 107 3.1 An Overview of the Two-Layered Structure of Genocide: ‘Conduct Level’ Versus ‘Context Level’ 108 3.2 Who Are You?: The Hidden Concept of ‘Collective Genocide’ Governing the Case Law 115 3.2.1 A Peculiar Judicial Invention of ‘Collective Genocide’ at the Ad Hoc Tribunals: A Quasi-Element of Genocide? 115 3.2.1.1 Akayesu 117 3.2.1.2 Kayishema and Ruzindana 122 1st Stage Inquiry: Are the Elements of Genocide Met in Rwanda? 123 2nd Stage Inquiry: Are the Elements of Genocide Met in Kibuye? 126 3.2.1.3 Rutaganda and Musema 128 3.2.1.4 Krstic ́, Popovic ́ et al., Karadžic ́ and Tolimir 132 3.2.2 The Reason for the Jelisić Acquittal: The Absence of ‘Collective Genocide’ 136 3.3 ‘Collective Genocide’ and the Substantiality Requirement 140 3.3.1 Historical Development of the Substantiality Requirement 140 3.3.2 Objectifying ‘in Whole or in Part’?: Contextual Element of Genocide 144 3.3.3 Essence of Genocide? Destruction, Result and Substantiality 149 3.4 ‘Collective Genocide’ and Threat 154 3.4.1 Objective Threat Inherent in the Contextual Element 154 3.4.2 ‘Concrete Threat’ as Content of ‘Collective Genocide’?: Al Bashir Decision 156 3.4.3 Rethinking the Criticisms of the Al Bashir Decision’s ‘Concrete Threat’ 158 3.4.4 Threat Only as Proof, but Not Content of ‘Collective Genocide’ 162 3.5 ‘Collective Genocide’ and the Degraded Importance of Individualistic Genocidal Intent 172 References 177 4 Collective Genocidal Intent and Genocide as a Criminal Enterprise 180 Abstract 180 4.1 Unveiling Collective Genocidal Intent 181 4.1.1 Without Collective Genocidal Intent, No Individual Genocidal Intent 181 4.1.2 Inferring My Intent from ‘Acts of Others’?: Collective Genocidal Intent and the Pattern of Conduct 191 4.1.3 “Group as Such”: Importance of Collective MotiveReason for Targeting 199 4.2 Genocide as a Criminal Enterprise: A Genocide-‘Joint Criminal Enterprise’ Analogy 202 4.2.1 The Inherent Logic of Joint Criminal Enterprise Within Genocide: Parallel Notions of ‘Common PurposePlan’ and Collective Genocidal Intent 202 4.2.2 Applying Joint Criminal Enterprise to Genocide: Watering Down Individual Genocidal Intent Through Objectification? 207 4.2.2.1 Joint Criminal Enterprise and Presumption of Individual Genocidal Intent 207 4.2.2.2 Joint Criminal Enterprise and the Objective Approach to Individual Genocidal Intent at the ICTY 210 4.2.2.3 The Inherent Logic of Joint Criminal Enterprise and the Objective Approach to Individual Genocidal Intent at the ICTR 218 4.2.2.4 Krstic ́ Appeals: Lowered Level of ParticipationContribution and the Reduced Level of Genocidal Liability 223 4.2.2.5 A Hypothetical Consideration of the Ultimate Mastermind’s Genocidal Intent 225 4.2.3 The Top-Down Verticality of Genocidal Intent: The JCE Logic Within Genocide Rendering Genocide a Leadership Crime 227 References 234 5 Conclusion 237 Index 240 "Tackling one of the most confusing and controversial issues in the field of international criminal law -- i.e., the genocidal intent element, this monograph seeks to develop an account of genocidal intent from a collectivist perspective. Drawing upon the two-layered structure of the crime of genocide composed of the 'conduct level' and 'context level', it detects the genocidal intent element at the 'context level'. The genocidal intent found in this manner belongs to a collective, which significantly departs from the prior individualistic understandings of the notion of genocidal intent. The author argues that the crime of genocide is not a 'crime of mens rea'. Collective genocidal intent at the 'context level' operates in a way that renders the crime of genocide itself a criminal enterprise. The idea of genocide as a criminal enterprise also suggests that genocide is a leadership crime in respect of which only the high-level actors can be labeled as principals (as opposed to accessories). The book criticizes the dominant individualistic approaches to genocidal intent (in particular: the knowledge-based approach) which have thus far governed the relevant jurisprudential and academic analysis. It further demonstrates that the hidden notion of 'collective genocide' silently governs the relevant international jurisprudence. Practitioners and academics in the field of international criminal law and related disciplines will find in this book a new approach to the crime of genocide. The text is the first-ever book-length exposition of a collective account of genocidal intent. Its accessibility is highly enhanced by relevant footnotes. Sangkul Kim is Lecturer at Korea University in Seoul and Research Fellow with the Centre for International Law Research and Policy (CILRAP). He served as Associate Legal Adviser at the Office of the Prosecutor of the International Criminal Court (2004-2008). He earned law degrees from Korea University and Georgetown University Law Center"--Provided by publisher Tackling One Of The Most Confusing And Controversial Issues In The Field Of International Criminal Law - I.e., The Genocidal Intent Element, This Monograph Seeks To Develop An Account Of Genocidal Intent From A Collectivist Perspective. Drawing Upon The Two-layered Structure Of The Crime Of Genocide Composed Of The 'conduct Level' And 'context Level', It Detects The Genocidal Intent Element At The 'context Level'. The Genocidal Intent Found In This Manner Belongs To A Collective, Which Significantly Departs From The Prior Individualistic Understandings Of The Notion Of Genocidal Intent. The Author Argues That The Crime Of Genocide Is Not A 'crime Of Mens Rea'. Collective Genocidal Intent At The 'context Level' Operates In A Way That Renders The Crime Of Genocide Itself A Criminal Enterprise. The Book Criticizes The Dominant Individualistic Approaches To Genocidal Intent (in Particular: The Knowledge-based Approach) Which Have Thus Far Governed The Relevant Jurisprudential And Academic Analysis. It Further Demonstrates That The Hidden Notion Of 'collective Genocide' Silently Governs The Relevant International Jurisprudence. Sangkul Kim. Includes Bibliographical References And Index. La 4e de couverture indique : "Tackling one of the most confusing and controversial issues in the field of international criminal law: i.e., the genocidal intent element, this monograph seeks to develop an account of genocidal intent from a collectivist perspective. Drawing upon the two-layered structure of the crime of genocide composed of the 'conduct level' and 'context level', it detects the genocidal intent element at the 'context level'. The genocidal intent found in this manner belongs to a collective, which significantly departs from the prior individualistic understandings of the notion of genocidal intent. The author argues that the crime of genocide is not a 'crime of mens rea'. Collective genocidal intent at the 'context level' operates in a way that renders the crime of genocide itself a criminal enterprise. The book criticizes the dominant individualistic approaches to genocidal intent (in particular: the knowledge-based approach) which have thus far governed the relevant jurisprudential and academic analysis. It further demonstrates that the hidden notion of 'collective genocide' silently governs the relevant international jurisprudence." Front Matter....Pages i-xi Introduction....Pages 1-11 A Critique of Individualistic Approaches to Genocidal Intent....Pages 13-96 Collective Genocide, Contextual Element and Substantiality....Pages 97-169 Collective Genocidal Intent and Genocide as a Criminal Enterprise....Pages 171-227 Conclusion....Pages 229-231 Back Matter....Pages 233-235