The Substantiality Requirement in Genocide Law and the Problem of Objective Identification

Abstract

This thesis examines the ‘substantiality requirement’ in genocide law by asking to what extent, and how, the ‘substantiality’ of a targeted part can be determined in objective terms. The substantiality requirement, which has become a de facto part of the legal representation of genocide, stipulates that a protected group should be targeted at least in substantial part for an act to constitute the crime of genocide. However, the impreciseness inherent to the notion of ‘substantiality’ and the uncertainties involved in locating the relevant ‘whole’ and ‘part’ cause applicative difficulties and particularly raise concerns about the lack of ‘objectivity’ of assessments. This thesis aims to contribute to knowledge by exploring a novel perspective to this significant, yet under examined, problem through the lenses of a relational-realist perspective. The thesis begins by identifying the application of the requirement as an episode of the broader jurisprudential problem of how to ‘connect’ abstract universals to particulars. Subsequently, it is outlined that while there have been various approaches developed in literature and case law to dissipate ‘objectivity’ concerns by introducing further normative universals – and thus ‘bridging the particularity void’, these attempts have raised more moral and applicative problems than they have solved. This is because, it is argued in chapters two and three, all these approaches are built on competing substantialist misrepresentations of the nature of the protected groups and thus falsely premise a form of ‘strict normativity’, while also undermine the phenomenological reality of genocide at the expense of legalistic concerns. Against this background, the thesis suggests that the contingent reality of the protected groups and processual and contextual nature of the crime should not be overlooked in construing and applying the definitional elements in order to effectively ‘bridge’ the gap between the legal abstraction and reality. Reflecting on this insight, chapters four and five attempt to develop a relational-realist conceptual framework and by re-evaluating the research problem through the lenses of this framework, it is argued that there exists no ontological basis or epistemological possibilities to establish a one-applies-to-all kind of norm that reference to which will justify a legal decision regarding ‘substantiality’ as the right decision. Rather, ‘objectivity’, at least in this particular context, should be thought of in terms of ensuring predictability and consistency in the identification and justification process. Considering ‘objectivity’ in this sense, the thesis concludes by arguing and elaborating that the identification of ‘substantiality’ should be reframed as a balancing process between the genealogical and analytical imperatives, which respectively imposed by the historicality and immorality of the crime. The study finally demonstrates how this balancing process may work with a case study conducted on the South Sudan Conflict.

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Identifiers

ORCID for Regina Rauxloh: orcid.org/0000-0003-2711-1424

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