The Contextual Embedding of Genocide: A Casuistic Analysis of the Interplay between Law and Facts

This article discusses the contextual embedding of genocide in the case law of the ad hoc tribunals and the International Criminal Court. In particular, it seeks to clarify to what extent the courts require that an individual génocidaire acted in the context of a collective act. The article shows that the courts’ approach towards the contextual embedding of genocide depends on the factual circumstances of the specific situation under consideration. It can therefore not be captured in one uniform standard, but differs per case. This flexibility and context-dependency can be explained in terms of the open texture of the genocide concept. This article emphasises that the openness of genocide must not lapse into illegitimate decision-making. It therefore advocates a casuistic methodology of judicial reasoning. This methodology balances the need for progressive development and judicial creativity on the one hand, against the requirements of legality and consistency on the other.