제노사이드의 중층구조와 상황적 구성요건

In this article, 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’. 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.