Classifying Genocide in International Law: The Substantiality Requirement

Description

This book offers an in-depth examination into genocide law by focusing on one of the lesser examined, yet practically significant, issues: the ‘substantiality requirement’. This refers to the requirement in international law that intended destruction should be directed towards a ‘substantial’ part of a protected group in order for an atrocity to qualify as genocide. This comprehensive and detailed study draws connections between different judicial approaches to ‘substantiality’ and the varying theoretical presumptions about the constitutive concepts of the crime. This prima facia doctrinal problem is used as a springboard to scrutinise the broader theoretical problems underlying the legal conceptualisation of genocide. The book systematically explores how the individualistic and collectivistic conceptions of the crime have been able to co-exist in case law and how the different approaches to assessing substantiality have played a backdoor role between these two conceptions. The work demonstrates that these two philosophical standpoints are far from effectively representing the reality of the protected groups and fully explaining the harm inherent to group destruction. The book revisits the recent philosophical and sociological studies on the crime and, considering ideas from the emerging ‘relational approaches to genocide’, offers a third way to understand the existing legal representation of the crime and, consequently, the idea of ‘substantiality’. It demonstrates the practical significance of its theoretical debates and applies its novel perspective through a case study on South Sudan. This book will be highly useful to students and scholars with an interest in genocide studies, international criminal law and legal theory. It will also be of interest to policymakers engaged with issues around genocide. Cover Half Title Title Copyright Contents Table of Cases Acknowledgements Abbreviations 1 An Introduction to the Problem of the Identification and Justification of ‘Substantiality’ in Genocide Law 1.1 Conceptual Problems Behind Drawing the Legal Boundaries of Genocide and the Substantiality Requirement 1.2 Approach and Objectives of the Book 1.3 Practical Significance of the Substantiality Requirement 1.4 Argument and Structure of the Book 2 Emergence of the Substantiality Requirement as a De Facto Norm and Its Judicial Application 2.1 Emergence of the Substantiality Requirement as a De Facto Norm and the Question of Application 2.2 Searching for a Settled Meaning: Contradicting Understandings of ‘Substantiality’ Through the Lenses of Distinct Conceptual Commitments 2.3 Lack of a Conceptual Rigour: An Ambiguous Conceptualisation of Genocide in Case Law 2.4 Judicial Approaches to the Determination and Justification Problem of ‘Substantiality’: Using the Requirement as a Backdoor 2.5 Summary and Concluding Remarks 3 The Substantiality Requirement in the Legal Literature: Uncovering Binary and Substantialist Thinking 3.1 Individualistic Conceptions of the Protected Groups and the Substantiality Requirement 3.2 Collectivistic Conceptions of the Protected Groups and the Substantiality Requirement 3.3 Summary and Concluding Remarks 4 Beyond Binary and Substantialist Thinking: Embracing the Contingency in the Identification and Justification of ‘Substantiality’ 4.1 Contingent Reality of the Protected Groups 4.2 Embracing the Contingency in Identifying and Justifying ‘Substantiality’ 4.3 Summary and Conclusion 5 Locating the Relevant ‘Part’ in Light of the Processual Nature of Group Destruction and the Contextuality of Genocidal Intent 5.1 Processual Nature of Group Destruction and Locating the ‘Part’ 5.2 Contextuality of Genocidal Intent and Determination of the ‘Part’ 5.3 Summary and Concluding Remarks 6 A Four-Step Examination for Establishing the Crime of Genocide 6.1 Locating a Normative Destructive Ethos Against a Protected Group 6.2 Determining Whether the Process of Group Destruction Reaches the Stage of Genocide 6.3 Assessing ‘Substantiality’ 6.4 Individualisation of Genocidal Responsibility 6.5 Concluding Remarks 7 A Case Study: The Question of Genocide in South Sudan and the Substantiality Requirement 7.1 A Brief History of the South Sudan Conflict: A Nation-Building Process Gone Wrong 7.2 Assessments of the Situation: Ongoing or Impending Genocide? 7.3 A Comparative Assessment of the South Sudan Situation Through the Proposed Framework 7.4 Concluding Remarks: Genocide in South Sudan? 8 Conclusion Bibliography Index