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Journal of International Criminal Justice Advance Access originally published online on June 17, 2009
Journal of International Criminal Justice 2009 7(2):297-306; doi:10.1093/jicj/mqp031
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© Oxford University Press, 2009, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org

Symposium

The Crime of Genocide and Contextual Elements

A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case

Claus Kreß*

* Professor of Criminal Law and Public International Law, University of Cologne, Germany. [Claus.Kress{at}uni-koeln.de]


  Abstract

The Pre-Trial Chamber correctly held that the formulation of the last (common) element in the Elements of Crimes on Genocide does not purport to amend the crime's definition but provides for a welcome clarification. The contextual elements should not, however, be seen as an addition to the crime's actus reus but as an objective point of reference for the determination of a realistic genocidal intent. The Chamber's requirement of a ‘concrete threat’ is unfortunately worded because it suggests an unduly stringent contextual threshold.


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