Докторська школа імені родини Юхименків
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Item Genocidal Intent to Destroy a National Group in Whole or in Part : dissertation for obtaining the degree of Doctor of Philosophy(2026) Vishchyk, Maksym; Antonovych, MyroslavaPhD thesis to obtain the degree of Doctor of Philosophy in the Programme Subject Area 293 "International Law" (29 – International Relations). – National University of "Kyiv-Mohyla Academy", Kyiv, 2026. The interpretative frameworks of the law of genocide have traditionally overlooked the nuanced contextualisation of the crime’s elements application based on the identity of the protected group targeted. Since a human group and its right to exist is at the heart of the criminalisation of genocide, the interpretation of the crime’s elements – despite preserving the necessary interpretative core – inherently depends on the very identity of the targeted entity. The problem has been particularly relevant in cases of intent directed at the destruction of national groups, raising three fundamental challenges. The first set of problematic aspects concerns the very definition of a national group in international criminal law, as well as its distinction from other groups. The discussions question whether it is necessary and desirable to single out national groups for the purposes of defining genocidal intent at all or, instead, to view all protected groups as an aggregated entity. Further complications relate to what should be the core of a national group’s definition with theories ranging from requiring shared citizenship, to national origin and national identity in the sense of membership in a nation as a complex sociopolitical entity. Inherently, an interconnected issue concerns the definition of a concept of a nation, per se. The second category of intricate legal issues relates to the scope and direction of the required genocidal intent. In particular, they concern the question of defining the national group "in whole" contrasted with the national group "in part" as two alternative manifestations of the intent’s scope. Where the part is targeted for destruction, such a part must be substantial towards the group "in whole". Yet, an algorithm for evaluating the substantiality of the targeted part has traditionally been blurred and full of gray zones. Likewise, the question arises of whether intended destruction, especially in cases of targeting national groups, is limited to physical or biological destruction elimination sought or can, more broadly, also incorporate the group’s social disintegration. Lastly, international legal doctrine and jurisprudence have mainly lacked a comprehensive, sequential and coherent methodology for inferring genocidal intent from indicators. The purpose of the dissertation study is to provide a comprehensive and coherent interpretation of the law of genocide pertaining to the outlined contested issues of the definition of genocidal intent directed at the destruction of national groups "in whole" or "in part", as well as to further test their application in the context of Russian atrocities in Ukraine. The dissertation represents a first-of-its-kind, holistic and multidisciplinary study of the special intent element in cases where national groups are targeted for destruction. The study represents a step-by-step methodology for the assessment of various layers and levels of the intent, pinpointing the gaps and inconsistencies frequently or overall missing or significantly overlooked, both in the commentaries and international jurisprudence. The study also offers ways to bridge the gaps and address the inconsistencies by evaluating various potential approaches and selecting the soundest legal interpretations for the purpose of cohesive application of the law of genocide in a systemic way. In particular, the novelty is attested by the following results distinguishing the present study from other research materials in the field of the law of genocide, international criminal law and public international law more broadly: • The study offers a thorough overview of the approaches to delineate protected groups (labelling them as "distinctionist" and "aggregationist" based on their tendency to prefer or avoid delimitation of protected groups), weighing the benefits and drawbacks of each of them, and proposing an interpretation that avoids major legal risks and conflicts. • The study provides the definition of national groups based on the rigorous discussion of its key characteristics, which is mainly missing in the contemporary commentaries. The study outlines the flaws in the definition of the national groups unfoundedly adopted by certain international jurisprudence, which associates membership in a national group with citizenship, instead proposing a definition linking national groups to nations. The study likewise addresses the key potential challenges and criticisms linked to this approach. • The study presents a first-of-its-kind guidance on interpreting the meaning of the intent to destroy national groups "in whole". It contextualises the definition of the group "in whole" to all protected groups, focusing particularly on national groups, drawing on both objective factors and subjective perceptions of perpetrators and victims. • The study lays out a comprehensive framework for evaluating the intent to destroy a national group "in part". The study provides a rigorous assessment of the substantiality requirement related to the targeted part, evaluating various approaches to the substantiality analysis proposed by the jurisprudence or implicitly stemming from it, concluding on the most sensible and well-founded one. • The study presents a unique proposal for situating the "leadership factor" (i.e., targeting the protected group’s leaders) within the methodology of intent assessment. • The study provides for a meticulous analysis of the nature of the intended destruction required by the mens rea element, evaluating whether the term "to destroy" may encompass the group’s social disintegration in addition to physical or biological forms of eradication sought. • The study offers a comprehensive framework for a step-by-step evaluation of indicators relevant to the assessment of the presence of the intent to destroy national groups. • The study supplements legal findings with the unique attempt to apply the developed framework to the factual context of the Russian atrocities in Ukraine following the 2022 full-scale invasion. Element by element, the study evaluates the scope of underlying acts committed, the alleged targeted group, and indicators capable of both proving and disproving the existence of genocidal intent to destroy the Ukrainian national group. • The study provides a preliminary hypothesis on the commission of the crime of genocide in Ukraine on the basis of the developed methodologies and legal theories. The dissertation study is expected to be of substantial use for both further academic research in the field of the law on genocide and practical application by justice and civic society actors. Particularly, the dissertation study is expected to advance accountability efforts by the Ukrainian justice actors – prosecutors, judges, and investigators – by providing them with a clear methodology for the evaluation of genocidal intent in cases where targeting of the Ukrainian national group is alleged. The study is expected to assist the Ukrainian justice actors in understanding both the foundations of the mens rea element in general, as well as sub-elements of genocidal intent, which have to date received conflicting interpretations in both jurisprudence and legal doctrine. The findings of the study may also be of significant use and relevance to the Ukrainian civic society actors in their advocacy campaigns on the Russian atrocities in Ukraine by providing a coherent framework for the evaluation of the alleged intent behind the Russian actions.