7 Contextual Element

Subject(s):

Crimes against humanity — Genocide — War crimes — Customary international law

This chapter discusses the requirement of a contextual element. For crimes against humanity, the conduct in question must have been part of a widespread or systematic attack against a civilian population and the perpetrator must have acted whilst aware of that connection. These contextual elements provide normative specificity to war crimes and crimes against humanity and distinguish them from one another and from domestic crimes. In contrast, the Genocide Convention does not provide for any such contextual element for the crime of genocide, nor does customary international law. Genocide thus requires no proof of an attack against a civilian population, nor the existence of an armed conflict. Therefore, as a matter of general international law, the specificity of the crime of genocide lies not in any contextual element that would attach to its definition, but in its protected interest (i.e., certain protected groups) and in the associated requirement that crimes committed against members of these groups must have been committed with the intent to destroy in whole or in part the group as such.