Towards a New Assessment? Contextual Elements in the Rome Statute

Abstract

This chapter examines the orientation of the Rome Statute towards a new assessment of the contextual elements of the crime of genocide. The Elements of Crimes represented a novel addition with very little guidance on its status or interpretation, or what purpose it intended to serve in light of the identical reproduction of the Genocide Convention’s definition of genocide. This chapter evaluates the substantive and normative nature of the contextual elements of genocide in light of these new developments in the Rome Statute. It examines the need for the concept of the EoC through its evolution during the drafting process. Then, the contextual element is interpreted through the provisions of the Rome Statute to determine its legal position according to the current wording of Articles 9 and 21. The chapter puts forward a case for new assessment, and confirms that the contextual element of Article 6 of the Rome Statute adds nothing to the definition of genocide and thus can only be explained by two roles: first, by the need for jurisdictional limitation of the new court—the ICC—and second, to avoid trivialization of the court by allowing prosecution of a lone génocidaire. Hence, the only way that the last common element of the EoC of genocide can be reconciled with the definition of genocide, is to consider this element as a jurisdictional element, thus the court can apply it as such to filter the admissibility of small-scale and lone-perpetrator crimes to the ICC.