The Protected Value and the Prohibition of Genocide

This chapter focuses on the legal valueValue underlying the prohibition of genocideGenocide. It examines how different legal traditions, particularly the harm principleHarm principle in common law and the Rechtsgut theory in civil law, converge in safeguarding fundamental valuesValue in the realm of criminal law. Building on the doctrine and analyses of domestic law, it articulates a trans-subjective approach vis-à-vis the protected legal valueValue of the law on genocideLaw on genocide, reconciling the subjective and objective elements of the existing theories. In this constellation, the protected groupProtected groups serves as the critical link between intent (mens rea) and action (actus reusActus reus). The analysis is extended to the classification of national, ethnic, racial, and religious groupsReligious group, arguing for a nuanced understanding that reflects the complex interplay between groupGroups identityIdentity, legal definitions, and the collective right to existCollective right to exist. Ultimately, the chapter underscores the importance of balancing the subjective and objective aspects of genocideGenocide to maintain the integrity of international criminal law.