By Sangkul Kim
Tackling essentially the most complicated and debatable concerns within the box of overseas legal legislations — i.e., the genocidal rationale point, this monograph seeks to boost an account of genocidal motive from a collectivist standpoint. Drawing upon the two-layered constitution of the crime of genocide composed of the ‘conduct point’ and ‘context level’, it detects the genocidal reason point on the ‘context level’. The genocidal cause present in this fashion belongs to a collective, which considerably departs from the past individualistic understandings of the inspiration of genocidal cause. the writer argues that the crime of genocide isn't a ‘crime of mens rea’. Collective genocidal motive on the ‘context point’ operates in a fashion that renders the crime of genocide itself a legal firm. the assumption of genocide as a felony firm additionally means that genocide is a management crime in admire of which in basic terms the high-level actors might be categorised as principals (as against accessories).
The publication criticizes the dominant individualistic techniques to genocidal cause (in specific: the knowledge-based method) that have up to now ruled the suitable jurisprudential and educational research. It extra demonstrates that the hidden inspiration of ‘collective genocide’ silently governs the suitable overseas jurisprudence. Practitioners and teachers within the box of overseas legal legislations and similar disciplines will locate during this publication a brand new method of the crime of genocide. The textual content is the first-ever book-length exposition of a collective account of genocidal cause. Its accessibility is very more desirable by means of correct footnotes.Sangkul Kim is Lecturer at Korea collage in Seoul and examine Fellow with the Centre for overseas legislation learn and coverage (CILRAP).He served as affiliate criminal Adviser on the place of work of the Prosecutor of the foreign legal courtroom (2004-2008). He earned legislation levels from Korea college and Georgetown college legislation Center.
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Additional info for A Collective Theory of Genocidal Intent
847. , the subjective approach, the objective approach, and the Roxin’s control theory (Tatherrschaft), see Fletcher 2011, pp. 189–190. For an overview of the various standards applied at the ad hoc international criminal tribunals in distinguishing principals and accessories, see Ambos 2013, pp. 134–135. 86 This observation sounds contradictory to the previous claim that low-level actors should be punished “as principals”. Classifying the low-level actors in a genocidal campaign as ‘secondary participants’, ‘aides and assistants’, or ‘mere instrument’ reflects the ‘subjective approach’ or the ‘control theory’ to distinguishing principals and accessories.
In Krstić, the ICTY Trial Chamber draws its conclusion on the question of the accused’s genocidal intent on the basis of the accused’s knowledge of the destructive consequence as follows: Having already played a key role in the forcible transfer of the Muslim women, children and elderly out of Serb-held territory, General Krstić undeniably was aware of the fatal impact that the killing of the men would have on the ability of the Bosnian Muslim community of Srebrenica to survive, as such. 77 In the present case, General Krstić participated in a joint criminal enterprise to kill the military-aged Bosnian Muslim men of Srebrenica with the awareness that such killings would lead to the annihilation of the entire Bosnian Muslim community at Srebrenica.
54 In any event, it should be remembered that Greenawalt’s knowledge-based approach is premised on the notion that the perpetrator knows the result or consequence of destruction. In this respect, Greenawalt further observes, [The knowledge-based] approach emphasizes the destructive result of genocidal acts instead of the specific reasons that move particular individuals to perform such acts. 55 Currently, many commentators follow the knowledge-based approach. Among them, Hans Vest also maintains that the ‘practical certainty’ standard should be applied to his version of the knowledge-based approach.