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The contextual element of genocide is an ongoing issue in the jurisprudence of genocide; the question of whether a genocidal policy or plan is an element of the crime of genocide has implications for the rights of the accused, the right to have the law interpreted in their favor where it is ambiguous, and the risk of harm from a theory of culpability that could be satisfied by simple participation in any large-scale killing.[1]
By the legal definition of genocide scholars mean the definition from article 2 of the Genocide Convention. The definition itself does not contain any contextual elements: it does not state a requirement for state or organizational involvement.[2] The US supported a strict requirement of state complicity but many countries opposed it. Arguments were made about failed states and weak states and their capability to prevent genocide from occurring.[3] Only one expert argued that "genocide should be restricted to the actions of rulers."[2]
The ICTY interpreted the legal definition of genocide as not requiring collective involvement; in other words, according to the decisions of the ICTY individuals acting on their own could be guilty of genocide.[2] Among scholars of genocide jurisprudence, William Schabas is a notable opponent of this interpretation. Schabas has written that it is "rather preposterous." Schabas' opposition is based on historic precedent;[2] all recognized cases of genocide have been committed in "pursuit of a plan or policy of a State or state-like entity".[1]
Antonio Cassese does not consider a genocidal policy or campaign to be a legal requirement:[4]
It would be incorrect to conclude that the genocidal policy or campaign is one of the legal ingredients of genocide. Even admitting that historically genocide has been perpetrated within a genocidal context, still it is theoretically possible that a lone perpetrator may realistically aim at the destruction of a targeted group in the absence of such context.
A few months after the Trial Chamber decision in Jelisić convicted for genocide without evidence of a plan or policy, the ICC elements added a contextual element to avoid the inclusion of isolated hate crimes as genocide:
the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction
(Originally the US had proposed the "widespread and systematic" language used for crimes against humanity. In early 2000 it was replaced by the "context of a manifest pattern" language.)[5]
Genocidal acts like murder, forcible transfer of children and forced sterilization are crimes themselves. What makes those crimes genocide is that they are committed with what has been called the "special intent".[6] The accused perpetrator must have the intent—even if a great many people are killed as part of a genocidal plan, the mental state of the individual must be capable of being proven by the prosecution. The crime of genocide can not be proven by objectively identifiable conduct alone; it requires proof of the state of mind of the accused perpetrator.
Phillippe Larochelle defense lawyer at the ICTR has publicly made statements questioning the narratives of collective guilt that were advanced by prosecutors during their investigations and obtaining of witness statements:[7]
You are getting into the realms of holding people accountable by virtue of the fact they belonged to an organisation or collective or group which I think is a mistake, and it actually runs contrary to what the original resolution says which is if you want to find someone guilty, you have to demonstrate their own guilt, intent and acts. You cannot hold someone guilty by the fact that they belong to a government, a political party or an organisation.
Scholars have noted that perpetrators may seek to avoid legal consequences by claiming an absence of intent. If the intent requirement was knowledge based it would be easier to prove intent. All that would be required is an act that knowingly contributes to a genocidal campaign; under a knowledge based intent standard the requirement of a genocidal campaign would be implicit.[1][2]
