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A Collective Theory of Genocidal Intent A Critique of Individualistic Approaches to Genocidal Intent

A Collective Theory of Genocidal Intent : A Critique of Individualistic Approaches to Genocidal... [In this chapter, my discussion begins with a critique of individualistic approaches to interpreting the genocidal intent element. I criticize the knowledge-based approach mainly in view of its legal implications of attaching principal liability to subordinate actors. I ask whether there still remains room for aiding and abetting liability of genocide in the territory of the knowledge-based theory. In the context of a systematic genocidal campaign, there should be only a few who lacks knowledge of such overall context of violence, which factually overlaps with the destructive consequences to a significant extent. Therefore, in terms of the crime of genocide, the applicable scope of the knowledge standard is almost limitless. What I argue is that the knowledge-based understanding of genocidal intent risks shaking the basic legal foundation of differentiating principals and accessories. In the next section, I criticize the mistaken understanding of the purpose-based approach to genocidal intent involving the notion of intensity of volition, surrounding the term ‘special intent’. This criticism is based on the conceptual distinction between ‘general intent’ and ‘special intent’. I also explain that the correct account of the purpose-based theory should employ the notion of ‘desire in a broad sense’ that is conceptually compatible not only with positive emotions but also with negative emotions. Then, my second challenge to the knowledge-based analysis relies heavily on the distinctive feature of the two mens rea concepts of ‘direct intent/purposely’ and ‘indirect intent/knowingly’. I understood that the former is always directed toward ‘desired main effect’, while the latter, by definition, corresponds to ‘unwanted or uninterested side-effect’. I then demonstrated that ‘destruction of a group’ should always be perceived as a ‘main effect’ desired by an actor. Yet, the actual practice of the ad hoc tribunals where genocidal intent has been primarily inferred from the overall context of genocidal campaigns kept me from proclaiming the victory of the purpose-based theory over its knowledge-based counterpart. How can you infer my mind primarily from the general context which is geographically and temporally far exceeds my personal realm? In this context, I put the title of the last section of the analysis of individualistic approaches to genocidal intent as ‘Complications and Frustrations’. These observations urged me to depart from the individualistic analysis.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

A Collective Theory of Genocidal Intent A Critique of Individualistic Approaches to Genocidal Intent

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References (89)

Publisher
T.M.C. Asser Press
Copyright
© T.M.C. Asser Press and the author 2016
ISBN
978-94-6265-122-7
Pages
13 –96
DOI
10.1007/978-94-6265-123-4_2
Publisher site
See Chapter on Publisher Site

Abstract

[In this chapter, my discussion begins with a critique of individualistic approaches to interpreting the genocidal intent element. I criticize the knowledge-based approach mainly in view of its legal implications of attaching principal liability to subordinate actors. I ask whether there still remains room for aiding and abetting liability of genocide in the territory of the knowledge-based theory. In the context of a systematic genocidal campaign, there should be only a few who lacks knowledge of such overall context of violence, which factually overlaps with the destructive consequences to a significant extent. Therefore, in terms of the crime of genocide, the applicable scope of the knowledge standard is almost limitless. What I argue is that the knowledge-based understanding of genocidal intent risks shaking the basic legal foundation of differentiating principals and accessories. In the next section, I criticize the mistaken understanding of the purpose-based approach to genocidal intent involving the notion of intensity of volition, surrounding the term ‘special intent’. This criticism is based on the conceptual distinction between ‘general intent’ and ‘special intent’. I also explain that the correct account of the purpose-based theory should employ the notion of ‘desire in a broad sense’ that is conceptually compatible not only with positive emotions but also with negative emotions. Then, my second challenge to the knowledge-based analysis relies heavily on the distinctive feature of the two mens rea concepts of ‘direct intent/purposely’ and ‘indirect intent/knowingly’. I understood that the former is always directed toward ‘desired main effect’, while the latter, by definition, corresponds to ‘unwanted or uninterested side-effect’. I then demonstrated that ‘destruction of a group’ should always be perceived as a ‘main effect’ desired by an actor. Yet, the actual practice of the ad hoc tribunals where genocidal intent has been primarily inferred from the overall context of genocidal campaigns kept me from proclaiming the victory of the purpose-based theory over its knowledge-based counterpart. How can you infer my mind primarily from the general context which is geographically and temporally far exceeds my personal realm? In this context, I put the title of the last section of the analysis of individualistic approaches to genocidal intent as ‘Complications and Frustrations’. These observations urged me to depart from the individualistic analysis.]

Published: May 25, 2016

Keywords: Purpose-based approach; Knowledge-based approach; Principal liability; Accessory liability; Special intent; Direct intent/purposely; Indirect intent/knowingly

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