제노사이드는 구체적위험범으로 분류될 수 있는가?– ICC Al-Bashir 사건 전심재판부 판례를 중심으로 –

The Pre-Trial Chamber of the International Criminal Court (ICC) handling the Al Bashir case classified genocide as a “concrete endangerment crime” and found that ‘concrete threat’ constitutes an element of the crime. However, considering that the concept of ‘concrete threat’ is inherently embedded within the contextual elements of genocide, it is doubtful whether it is necessary to treat the occurrence of ‘concrete threat’ as a separate element of the crime. Regrettably, the Al Bashir Pre-Trial Chamber made the mistake of overlooking the ‘substantiality requirement’—developed by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)—which recognizes the destruction of at least a substantial part of a group as a constitutive objective element of the crime. The established case law of these two tribunals requires, in addition to proving the genocidal intent element—widely recognized as the core of the definition of genocide—the demonstration of the result: the destruction of a “substantial part” of a group. This ‘substantiality requirement’ of genocide can be considered the contextual element of the crime. Moreover, the contextual elements of other core international crimes, such as crimes against humanity and war crimes, inherently present the notion of ‘real danger’ to human groups. Therefore, there is no need to establish ‘concrete threat’ as a separate element of the crime. In relation to the definition and proof of the crime of genocide, the concept of “concrete threat” can only serve as evidence to prove the ‘substantiality requirement’ and cannot constitute a separate element of the crime.