개인적 내심 밖의 존재로서의 Genocidal Intent － 그 집단성에 주목하며 －

The crux of the definition of genocide is the genocidal intent element that sometimes also called ‘special intent’ or ‘specific intent’. Thus far, the relevant international case law and scholars have understood genocidal intent as something which exist within an individual state of mind—i.e., as a mens rea. The genocidal intent element grasped in this manner is an individualistic and subjective notion, which conflicts with the inherently collective nature of the crime of genocide, as being a crime committed by a collective against another collective. In this context, I tried to understand the concept of genocidal intent from a collective perspective, which situates the notion of genocidal intent external to an individual mind. I call it ‘collective genocidal intent’. I demonstrate that this notion of collective genocidal intent is the essence of the crime definition of genocide and that, without collective genocidal intent, there is no ‘individual genocidal intent’. I also point out that what the ad hoc international criminal tribunals inferred from the overall context of violence had not been individual genocidal intent, but its collective counterpart. Lastly, this paper argues that a political or historical background pertaining to the groups involved in a genocidal atrocity is a decisive and reliable source to ascertain the existence of the collective genocidal intent.