TO CAUSE OR NOT TO CAUSE, THAT IS THE QUESTION
THE PROSECUTORIAL STANDARD FOR INCITEMENT AT INTERNATIONAL CRIMINAL LAW
By
Jennifer Johanna Schuetze
Institute of Comparative Law Faculty of Law McGill University, Montreal
February 2005
A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master of Laws (LL.M.)
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While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. ••• Canada To my be/oved ABSTRACT
The prosecutorial standard for incitement is subject to different approaches in the common law and civil law traditions respectively. The most crucial difference lies in the role attributed to the result as a definitional element of the offence. While the civil law generally characterizes proof of results as a pre requisite to liability, the common law views it as significant but not determinative of guilt. This divergence is expounded at the international level, which condones both approaches with respect to different crimes, employing the common law approach only to genocide and relegating aIl other crimes to the purview of the civil law approach. The practical effect is a focus on the gravit y of the substantive crime to which incitement attaches, rather than on the crucial role of incitement itself. This thesis will seek to elucidate the parameters of this debate with the aim of deconstructing and redrawing preconceived barri ers in international criminallaw.
ABRÉGÉ
Le standard de poursuite pour incitation est sujet à différentes approches entres les juridictions du droit civil du "common law" anglais. La différence cruciale est le rôle attribué au résultat en tant qu'élément constitutif du crime. Alors que le droit civil caractérise l'effet comme un prérequis, le "common law" l'interprète comme étant important mais pas indispensable. Cette divergence est accentuée au niveau international, où l'on applique les deux méthodes à des crimes différents, se référant au "common law" seulement lorsqu'il s'agit de génocide et au droit civil pour l'ensemble des autres crimes internationaux. En conséquence, l'emphase est mise non sur le rôle crucial que joue l'incitation dans l'accomplissement des crimes, mais plutôt sur la gravité des crimes à laquelle elle s'attache. Cette thèse a pour but d'élucider les paramètres de ce débat avec l'objectif de déconstruire des barrières établies dans la conceptualisation et défmition de l'incitation. ACKNOWLEDGEMENTS
First of aIl, 1 would like to thank my wonderful supervisor Professor Patrick Healy for inspiring me to write on this unexplored area of the law and for guiding me through complex questions that arose in the process. A great "thank you" is equally attributable to Mark Antaki, who was always ready to lend an ear and provide intelligent feedback, as weIl as Carole Chan, Pavan DhiIlon, Maureen Duffy, Sébastien Jodoin and Michelle Toering Sanders, aIl of whom assisted in the editing and formatting process.
My deepest gratitude goes to my dear parents, Hans and Heather, for their unconditional love and support, my three beloved brothers, Christopher, Benjamin and Jeremy, and my deeply cheri shed husband Philippe, to aIl of whom 1 dedicate this thesis, as a token of my love and affection. Table of Contents
INTRODUCTION ...... 2 CHAPTER 1: PROSECUTING INCITEMENT AT THE NATIONAL LEVEL...... 8
1. CRIMINALIZING INCITEMENT GENERALL y ...... 8 A. The Anglo-Saxon Notion of Inchoate Liability and Equivalent Concepts in the Roman- Continental System ...... 8 i) Common Law Systems ...... 12 ii) Civil Law Systems ...... 15 Il. CRIMINALIZING INCITEMENT TO GENOCIDE ...... 20 A. Constitutive Elements ...... 20 i) Special Intent ...... 20 a) Public Place ...... 23 b) Directness ...... 25 ii) The Element of Causation ...... 27 a) The Genocide Convention on the Prevention and Punishment of the Crime of Genocide 27 b) The I.L.C. Draft Code of Crimes Against the Peace and Security of Mankind ...... 32 B. National Approaches to the Crime of Incitement to Genocide ...... 34 i) Common Law Systems ...... , ...... 34 a) Canada ...... 34 b) The United States ...... 36 ii) Civil Law Systems ...... 37 a) France ...... 37 b) Germany ...... 38 C. Conclusion ...... 40 CHAPTER Il: PROSECUTING INCITEMENT AT THE INTERNATIONAL LEVEL ...... 41
1. INTERNATIONAL JURISPRUDENCE: FROM NÜRNBERG TO Now ...... 41 A. The International Military Tribunal at Nürnberg ...... 41 B. The International Criminal Tribunal for Rwanda ...... 43 C. The International Criminal Court: Potential for Clarification? ...... 51 i) The Rome Statute Examined ...... 51 a) Criminalizing Incitement under Article 25 ...... 51 b) Sources of Law under Article 21 ...... 53 ii) Incitement against the Backdrop of the Complementarity Principle ...... 61 a) Complementarity in Practice ...... 61 b) Differentiai Prosecutorial Standards for the Crime of Incitement ...... 63 D. Conclusion ...... 69 CHAPTER III: THEORETICAL APPROACHES TO THE CRIMINALIZATION OF INCITEMENT ...... 70
1. THE OUEST FOR A JUST STANDARD ...... 70 II. THE SCOPE OF INTERNATIONAL CRIMINAL RESPONSIBILlTY ...... 73 A. Elements of International Crimes ...... 73 i) Genocide: the Crime of Crimes ...... 73 a) Specifie vs. Generallntent...... 74 ii) Crimes against Humanity: a Lesser Evil? ...... 78 iii) War Crimes ...... 80 B. The Relative Seriousness of International Crimes ...... 83 III. CONSTRUING AN INCITEMENT STANDARD AT THE ICC ...... 92 IV. CONCLUSION ...... 96 CONCLUSION ...... 98 Introduction
... we need to study how the genocide happened not from the perspective of assigning blame - there is too much to go around - but from the perspective of how we are going to take con crete steps to prevent such a thing from ever happening again. To properly mourn the dead and respect the potential of the living, we need accountability, not blame. We need to eliminate from this earth the impunity with which the génocidaires were able to act, and re-emphasize the principle ofjustice for ail, so that no one for even a moment will make the ethical and moral mistake of ranking sorne humans as more human than others, a mistake that the international community endorsed by its Indifference in 1994. J
INTRODUCTION2
This past century al one has witnessed millions of deaths as a result of genocide, a crime characterized by the deliberate extermination of a group of people, in whole or in part, on the grounds of nationality, ethnicity, race, and religion. 3 Genocide is considered the "supreme' crime because of its level of premeditation and its devastating consequences on an entire people and on humanity as a whole. By its nature, the crime of genocide enlists, indeed is contingent upon, the help of many participants, sorne of which incite others to kill, others which commit the killings, or are complicit to such killings on various levels. Throughout history, incitement to genocide has been employed as a vital method of recruiting and mobilizing génocidaires. 4 Frequently the media plays an
1 Romeo Dallaire, Shake Hands with the Devi!: The Fai!ure of Humanity in Rwanda (Canada: Random House, 2003). 2 Sections ofChapters II and III (pp. 57-59, 61-63, 67-68 & 80-82) are inspired by two previous papers written as part of course requirements. The tirst, entitled "Complementarity: Justice without Force? A Critical Analysis of the ICC Admissibility Criteria" was written under the supervision ofProfessor Patrick Healy for the course: International Criminal Law, McGill Faculty of Law (Fall 2003) ["Complementarity: Justice without Force?"], and the second, entitled "Reconceptualizing Torture as a Necessary Component to the Achievement of Global Gender Justice" was written under the supervision ofProfessor René Provost as part of the requirements for the McGill International Human Rights Internship Programme (Fall 2002) ["Reconceptualizing Torture"]. Given the scarcity of materials on the subject matter of some issues examined in this thesis, notably in Chapters 1 and II, the author relies on numerous discussions held with Professor Patrick Healy. 3 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 V.N.T.S. 277, art. II [Genocide Convention]. 4 Generally, incitement is an act where one person induces or encourages another to commit a crime. Such incitement must be accompanied by a requisite intent on the part of the inciter to have the crime completed.
2 Introduction integral role in the process. In the case of Rwanda for instance, the public radio was used to inflame hatred towards Tutsis and Hutu moderates, culminating in a spectrum of sentiments ranging from complete indifference to their demise to veritable murderous intent.
In the landmark Akayesu case, the International Criminal Tribunal for Rwanda
(lCTR) recognized that while inciters advocated the killings through words, their actions were no less culpable than those who were inspired by their message and who subsequently killed with machetes.5 While arguably less tangible with respect to the actual killings, incitement must be viewed as a crucial step to the 'successful' commission of genocide. Indeed, the ICTR held that "direct and public" incitement to genocide can constitute a crime in its own right, bestowing inchoate liability regardless of whether or not it leads to the intended result. 6 This expansive view of incitement is backed by positive internationallaw, most notably the Convention on the Prevention and
Punishment of the Crime of Genocide7 and the Rome Statute of the International
Criminal Court. 8 As a result, the recognition of incitement' s imperative role in the preparation and execution of genocide attributes both a punitive and preventative role to
Incitement can include physical or psychological means of persuasion although, as was held in Prosecutor v. Blaskic (2000), Case No. IT-95-14, (International Criminal Tribunal for the former Yugoslavia, Trial Chamber 1), an omission can also constitute incitement [ibid. at para 280). Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) at para. 189. [International Criminal Law]. 5 Prosecutor v. Akayesu (1998), Case No. ICTR-96-4-T (International Criminal Tribunal for Rwanda, Trial Chamber 1) [Akayesu]. AIl ICTR cases may be found online: United Nations
3 Introduction criminal law. Indeed, prevention lS one of the major objectives of the Genocide
Convention. As Schabas notes:
Inchoate offenses are particularly important in the repression of genocide because of their preventive role. The seriousness of genocide and its dire consequences for humanity compel the application of the law before the crime actuaIly takes place.9
However, genocide is currently the only crime to which inchoate liability attaches for acts of incitement at international criminal law, thereby following the Anglo-Saxon conception of incitement. 1O In aIl other instances, the Roman-Continental approach appIies, in which proof of a result must be made in order to confer criminal liability on the accused. 11 Inevitably, this creates inconsistency between respective categories of incitement within the jurisdiction of international criminal bodies.
EssentiaIly, the common law and civil law depict fundamentally different understandings of the elements constituting incitement: while the former do es not consider the direct effect, i.e. the intended result, a definitional element of the crime, the latter does. As will be demonstrated in Chapter l, at the national level, this disparity may be merely theoretical since there are equally great variations among nations adhering to the same legal tradition.
This thesis' underlying premlse lS to contribute to the clarification of an international prosecutorial standard for incitement to cnmes other than genocide and
9 William A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000) at 257. [Genocide in International Law]. 10 Cassese, International Criminal Law, supra note 4 at 189. As noted by Cassese, "[i]ncitement to commit a crime is sorne forro of inducement, encouragement, or persuasion to perpetrate the crime. Incitement does not presuppose a hierarchical position. It simply means taking aIl those psychological or physical measures designed to prompt somebody else to commit a crime. It also requires the intent to have the crime perpetrated."(ibid. at 189). lIAkayesu, supra note 5 at para 562. The Chamber notes, however, that "such offences are the exception, the mIe being that in theory, an offence can only be puni shed in relation to the result envisaged by the lawmakers." (ibid.). A distinction will be made in the thesis between the need for proof of results (using terros such as, "direct effect", "intended result" and "resulting unlawful act") and the need for a causallink (either le gal or factual) between acts of incitement and subsequent results (employing terros such as, "causal nexus", "causality" and "causation").
4 Introduction ultimately, to help hannonize these standards within the parameters of the Rome Statute.
To this end, the well-established international standard for incitement to genocide will provide significant guidance. Specifically, the question whether incitement requires the intended result will be explored (considering also the causal nexus necessary between incitement and subsequent acts) with particular focus on the role played by the new pennanent International Criminal Court (lCC). This is imperative for several reasons.
First, the fact that the Rome Statute appears to adopt the Roman-Continental approach to incitement in cases other than genocide, creates inconsistencies among categories of incitement, and incidentally dis credits the overall sincerity of its stated objective to reflect "legal systems of the world" as per article 21. 12
Second, there is a growing interdependence between national and international criminallaw, the most recent manifestation ofwhich is the principle of complementarity as enshrined in the Rome Statute. This principle relegates the prosecution of international crimes to national courts unless these are "unwilling" or "unable" to hear them, and the parameters of these criteria are set forth in article 17. 13 Ultimately, as will be argued, the complementarity principle may serve to reinforce differential standards between common law and civillaw nations by condoning both legal approaches at the nationallevel.
The Rome Statute 's criminalization of incitement gives rise to an interrelated issue, to which this thesis will devote considerable attention in Chapter III. Currently, the imposition of criminal liability upon an inciter is contingent on the gravit y of the substantive crime incited to, a factor which has frequently been cited as a basis for
12 Rome Statu te, supra note 8, art. 21(c). 13 Ibid., art. 17.
5 Introduction elevating genocide to a 'supreme' crime. 14 This thesis will seek to elucidate the parameters of such a debate with the aim of deconstructing preconceived barri ers within the body of international criminal law. Specifically, it will argue that among the most serious international crimes listed in the Rome Statute, artificially imposed boundaries must be deconstructed, and redrawn, imposing a uniforrn standard of general gravit y and considering the likelihood of a crime' s occurrence, rather than the precise degree of intent, as the gui ding criteria. 15 According equal weight to the foregoing factors as registers of gravit y can help facilitate an argument in favour of conferring like treatment on acts of incitement to al! international crimes. Any discrepancy based on specifie gravit y (i.e. the degree of intent) should be taken into account at the sentencing stage instead.
Ultimately, relying on national and international sources, this thesis will advocate a prosecutorial standard at the ICC that conceptualizes incitement as an offence of general scope without the need for a subsequent result, although the existence thereof
14 Prosecutor v. Kambanda (1998), Case No. ICTR-97-23-S (International Criminal Tribunal for Rwanda, Trial Chamber) at para.16 [Kambanda]. The Trial Chamber refers to genocide as "the crime of crimes" (ibid). Jean Kambanda, who was the former prime minister of the Interim Govemment of Rwanda, entered guilty please to aIl six counts against him: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (murder and extermination). The Trial Chamber sentenced him to life imprisonment. The Appeals Chamber affrrmed the conviction against him on aIl six counts. Prosecutor v. Serushago (1999), Case No. ICTR-98-39-S (International Criminal Tribunal for Rwanda, Trial Chamber 1) at para.15. 15 Specific intent, which attaches to genocide but not crimes against humanity or war crimes, appears to justify the view that genocide is inherently more blameworthy than other international crimes. As will be demonstrated in the thesis, notably Chapter III, while tbis is relevant to bestowing inchoate liability on acts of incitement in the context of genocide, it should not be determinative of a crime's inherent level of gravity. For instance, the fact that genocide and crimes against humanity share a requisite level of general gravity by virtue of their premeditative elements significantly undermines the logic of attaching incitement merely to the former category of crime as opposed to the latter. War crimes, although commonly lacking this pre-meditative element, arguably bear a greater likelihood of being committed given the inherent tensions between persons in situations of armed conflict. War crimes are different from genocide and crimes against humanity in that they must bear a sufficient nexus to an armed conflict. Crimes against humanity and genocide on the other hand, can be committed in times of peace as weIl. See generally Cassese, International Criminal Law, supra note 4.
6 Introduction
inevitably reinforces a case against the accused. 16 While it is clear that incitement is a forerunner to a subsequent crime, recognizing it as a crime in its own right and deserving
of harsh penalties - irrespective of results - may more effectively contribute to the
prevention of the crime on the whole. In the alternative, incitement could be construed as
an alternative means of committing an offence, although this option will be explored in
less depth than the first.
The ultimate goal of this thesis is to propose a standard that allows for the
effective prosecution and prevention of these heinous crimes, an objective which forms
the very justification underlying the establishment of the ICC. Indeed, the Rome Statute
declares itself"[d]etermined to put an end to impunity for the perpetrators ofthese crimes
and thus to contribute to the prevention of such crimes.,,17
16 This was made c1ear in Prosecutor v. Nahimana, Barayagwiza & Ngeze (2003), Case No. ICTR-99-52-T (International Criminal Tribunal for Rwanda, Trial Chamber) at para. 1029. [Nahimana]. 17 Rome Statute, supra note 8, Preamble at para. 6. [Emphasis added].
7 Chapter 1: Prosecuting Incitement at the National Level
CHAPTER 1: PROSECUTING INCITEMENT AT THE NATIONAL LEVEL
1. Criminalizing Incitement Generally
A. The Anglo-Saxon Notion of Inchoate Liability and Equivalent Concepts in the Roman-Continental System
Incitement is an act or communication by which one person encourages or persuades another to commit a crime. 18 While incitement is often a crucial precondition to the commission of certain crimes, its seemingly intangible character renders the creation of an effective standard challenging. Nevertheless, incitement, together with conspiracyand attempt, are offences which have been recognized as inchoate in nature by many Anglo-Saxon traditions of the world. 19 An inchoate crime is a criminal act that is preparatory to another crime, which has not yet or will not ever be completed.20
Significantly, despite the fact that the preliminary crime may not result in actual harm,21 it can nonetheless be punishable in its own right. In fact, what characterizes inchoate crimes, as noted by Ashworth, is that:
they are committed even though the substantive offence is not successfully consummated. An attempt fails, a conspiracy cornes to nothing, words of incitement are ignored - in aIl these instances, there may be liability for the inchoate crime.22
Given that many international crimes are the result of great deliberation and planning, involving many actors, the rationale behind criminalizing these uncompleted offences is
18 Kriangsak Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001) at 247 [Kittichaisaree] . 19 Andrew Ashworth, Principles of Criminal Law (Oxford: Oxford University Press, 1991) at 395 cited in Black's Law Dictionary, 7th ed., s. v. "inchoate". [Principles of Criminal Law] North American and sorne European countries adhere to the Anglo-Saxon tradition (common law), whereas most of Europe adheres to the Roman-Continental tradition (civillaw), although there are sorne nations, i.e. Canada (Quebec), which adhere to both traditions at sorne level. 20 Casse se, International Criminal Law, supra note 4 at 190. 21 Ibid. 22 Ashworth, Principles ofCriminal Law, supra note 19 at 395.
8 Chapter 1: Prosecuting Incitement at the National Level
23 to limit their occurrence. However, as noted by Turner, the term "inchoate" 1S misleading because it:
connotes something which is not yet completed, and it is therefore not accurately used to denote something which is itself complete, even though it be a link in a chain of events leading to sorne object which is not yet attained. The offence of incitement is fully performed even though the person incited immediately repudiates the suggested deed. 24
Although this concept is specifie to the common law systems, many Roman-Continental
systems criminalize certain offences per se where their prohibition is deemed to act as a
sufficient deterrent to the substantive crime in question (infractions formelles).25 A well-
established example thereof is the crime of incitement to genocide. International criminal
law, in turn, bestows inchoate liability merely on incitement to genocide, thereby
alleviating the prosecution from having to establish a causal nexus between incitement
and the subsequent genocidal acts. 26 Despite an apparent opening in recent case law,
23 Cassese, International Criminal Law, supra note 4 at 190. The preventative role that criminallaw plays will be examined in more depth in Chapter III. Incitement in international criminallaw: is prohibited only if it leads to the actual perpetration of the crime, that is, as a form of participation in a crime, probably because States and courts have felt that prohibiting incitement per se in connection with any international crime including war crimes and crimes against humanity would excessively broaden the range of criminal conduct, the more so because of the difficulty of clearly delineating the notion of incitement. Incitement as such has been exceptionally prohibited, subject however to sorne stringent conditions, in connection, again, with the most harmful and serious international crime, genocide. (ibid. at 191). th 24 J.W. Cecil Turner, Kenny's Outlines ofCriminal Law, 16 ed. (Cambridge: Cambridge University Press, 1952) at 77 cited in the Black's Law Dictionary, 7th ed., s.v. "offense". 25 Akayesu, supra note 5 at para. 562. This must be compared to strict liability offences or infractions matérielles. Jacques-Henri Robert notes: «Lorsque les mauvais conseils paraissent dangereux pour la société tout entière, la loi en fait des délits autonomes qui ne doivent rien a la théorie de la complicité puisqu'ils sont punissable même s'ils ne sont pas suivis d'effets. » Droit Pénal Général, 5th ed. (Paris: Presses Universitaires de France, 2001) at 340 [translated by author] [Robert]. Islamic law, which represents one of the major legal traditions of the world, does not figure prominently in this debate. It is noteworthy, however, that it generally adheres to an element of causation in order to confer crirninal liability. Philip L. Reichel, Comparative Criminal Justice Systems: A Topical Approach, 3rd ed., (New Jersey: Prentice Hall, 2002) at 117. Presumab1y, this can be transposed to' incitement prosecutions, a1though, as in any 1egal system, there are likely variations. 26 Cassese, International Criminal Law, supra note 4 at 190. The rationale behind the criminalization of certain offenses is clear: the legal system intends to protect society as far as possible. Therefore, in addition to punishing offenses already perpetrated, it endeavours to prevent the commission of potential transgressions. It consequently intervenes with its prohibitions at an early stage, before crimes are completed, that is, at the stage of their preparation, so as to forestall the consummation of the harmful consequences of actual crimes. (Ibid.).
9 Chapter I: Prosecuting Incitement at the National Level which will be discussed in Chapters II and III, acts of incitement to other crimes appear to be result-oriented.
As far as the elements of incitement are concemed, the inciter (Person A) transposes the necessary intent (mens rea) to provoke the criminal act (actus reus) onto another person (Person B). Given that the mens rea and actus reus are ultimately united in Person B, there is no question as to the culpability of that person. However, what crime, if any, has Person A committed in urging Person B to commit the offence? The answer to this question is contingent upon the characterization of incitement in a particular legal system.
There are four principal ways of characterizing incitement: firstly, incitement as a form of participation in another offence which is subsequently consummated, second, incitement to an offence which is not consummated, third, incitement that is ancillary to
another offence and finally, incitement as a distinct offence.27
Essentially, the exact characterization of the act of incitement will determine whether or not a particular incidence thereof must be followed by a subsequent act in order to attract criminal liability. For instance, where incitement is conceptualized as a
form of participation in an offence (as complicity for instance), the crime of incitement must provide results in order to be punishable.28 In other words, proof of results will
extend the foundation of liability. For instance, in the case of s.22 of the Canadian
27 Conversation with Professor Patrick Healy (10 June & 12 October, 2004). 28 Schabas, Genocide in International Law, supra note 9 at 266. As noted by the Trial Chamber in Akayesu: The Chamber notes that complicity is viewed as a fonu of criminal participation by aIl criminal law systems, notably, under the Anglo-Saxon system (or Common Law) and the Roman-Continental system (or Civil Law). Since the accompli ce to an offence may be defined as someone who associates himself in an offence committed by another, complicity necessarily implies the existence of a principal offence (supra note 5 at para. 527).
10 Chapter 1: Prosecuting Incitement at the National Level
Criminal Code, an inciter becornes liable as a party to the cornpleted offence. 29 This, in
turn, elicits the difficult question whether an inciter' s actions should rernain unpunished
despite the presence of both the actus reus and mens rea,30 placing a significant burden
not on the actual act of inciternent itselfbut on its overall effect on another person.
Inciternent in an offence which is not subsequently cornrnitted can nevertheless be punishable as a distinct or stand-alone offence. Inchoate liability for inciternent can be
construed as a distinct offence, as in the case of inciternent to genocide, or as a general
offence, as is the approach typically taken by cornmon law countries.31
Inciternent that is ancillary to another offence is punishable where it incidentally
satisfies the elernents of another crime. This form of incitement could arguably facilitate the prosecution of unsuccessful inciternent to crimes other than genocide under the terms
of the Rome Statute.
Finally, inciternent as a distinct offence incurs inchoate liability, as in the case of
genocide; the international definition requires this to be sufficiently '"public" and "direct",
criteria which will be discussed in sorne detail be1oW. 32 Further, another key elernent of
incitement to genocide at international criminallaw is specifie intent (dolus speciales),
which will be discussed at sorne length in section II(A)(i) ofthis Chapter.
t 29 R.S., 1985, c. C-46, s.22; R.S., 1985, c. 27 W Supp.), S.7. 30 R.P. Saunders & J. McMunagle, Criminal Law in Canada: An Introduction to the Theoretical, Social and Legal Contexts, 4th ed. (Toronto: Thompson Canada Ltd., 2002) at 473 [Saunders & McMunagle). Conversation with Profes sor Patrick Healy (10 June, 2004). 31 Conversation with Professor Patrick Healy (10 June, 2004). 32 Inevitably, liability is bestowed on incitement only where the requisite level of intent on the part of the inciter (i.e. the desire to see the offence carried out) is present. Further, as noted by John Smith, "[t)he act incited must be one which, when done, would be a crime by the person incited. John Smith, Smith & Hogan, Criminal Law, 8th ed. (London: Butterworths, 1996) at 274.
Il Chapter 1: Prosecuting lncitement at the National Level i) Common Law Systems
Common law systems typically characterize incitement both as a form of participation in a completed offence (complicity) and as an inchoate offence. For instance, Canadian criminallaw characterizes incitement in two principal ways. Firstly, it conceptualizes incitement as a form of participation (counseling) in a completed offence under section 22 of its Criminal Code,33 requiring a causal nexus between the counseling and the subsequent acts.34 Secondly, section 464 characterizes incitement as a form of counseling, inchoate in nature and punishable in its own right. It stipulates:
Except where otherwise expressly provided by law, the following provisions apply in respect ofpersons who counsel other persons to commit offences, namely,
a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.35
As a result, Canada's Criminal justice system takes a fairly broad approach to incitement and the construction of section 464 appears to envisage the prosecution of incitement even where it do es not lead to the intended results, notably for incitement to crimes other than genocide.36 That section 464 has not been called upon to prosecute genocide or
33 R.S., 1985, c. C-46, s.22; R.S., 1985, c. 27 (l"t Supp.), S.7. 34 These are expounded in the case of incitement to genocide, a crime which by its nature involves a significant number of actors and often numerous acts of incitement at different stages leading up to the genocide. 35 R.S., 1985, c. C-46, s. 464; R.S., 1985, c. 27 (1 st Supp.), s. 60. 36 Conversation with Professor Patrick Healy (10 June & 31 August, 2004). The Crimes against Humanity and the War Crimes Act [S.c. 2000, c.24, s. 4] also explicitly punishes incitement to genocide, crimes against humanity and war crimes. It stipulates: 4( 1) Every person is guilty of an indictable offence who commits a) Genocide b) A crime against humanity; or c) A war crime (1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.
12 Chapter 1: Prosecuting Incitement at the National Level
crimes against humanity37 should not serve to discredit the fact that they could legally be prosecuted thereunder. Another provision of sorne interest is article 319 of the Canadian
Criminal Code, dealing with the willful promotion of hatred in public/8 which was examined in the infamous case of R. v. Keegstra before the Supreme Court.39 In that case, the majority endorsed a broad standard in which willful promotion of hatred requires the clear "intent to promote hatred or knowledge of the substantial certainty of such a consequence",40 a position which differs greatly from that advocated by the United
States, discussed below.
Similar to the Canadian position, incitement under English law is conceptualized both as a form of participation in a completed offence41 and as an inchoate offence of a general character.42 Although English law do es not provide an explicit provision criminalizing incitement, the Canadian approach, as reflected in the Criminal Code, is consistent with the position in England in so far as incitement need not be followed by a
37 Conversation with Professor Patrick Healy (10 June & 12 October, 2004). 38 Article 319(2) stipulates that: Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or b) an offence punishable on summary conviction. [R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1.] 39 R. v. Keegstra [1990] 3 S.C.R. 697. 40 Ibid. at 700. However, as noted by the rnajority: "The word 'wilfully' irnports into the offence astringent standard of mens rea which significantly restricts the reach of s.319(2) ... ". Finding that section 319(2) constitutes a reasonable lirnit on freedorn of expression, the rnajority states that: Parliament's objective of preventing the hann caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial hann that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the willful promotion ofhatred against identifiable groups [ibid. at 699]. 41 Accessories and Abettors Act (D.K.), 24 & 25 Vict., c.94. s.8. "Whosoever shall aid, abet, counsel or procure the commission of any indictable offence, whether the sarne be an offence at cornrnon law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender." (ibid.) Magistrates' Courts Act (V.K.), 1980, cA3, s.44 "A person who aids, abets, counsels or procures the commission by another person of a surnrnary offence shall be guilty of the like offence" (ibid.) 42 The King v. Higgins, (1801) 2 East 5,6 K.B. 358. [Higgins].
13 Chapter I: Prosecuting Incitement at the National Level subsequent act. 43 One of the oldest and most authoritative cases is Higgins,44 in which
Lord Kenyon noted:
But it is argued, that a mere intent to commit evil is not indicta)Jle, without an act done; but is there an act done, when is charged that the defendant solicited another to commit a felony? The soli citation is an act: and the answer given at the Bar is decisive, that it would be sufficient to constitute an overt act ofhigh treason.45
This was reaffirmed in the recent case of Armstrong, in which it was held that the criminalization of incitement do es not depend on whether or not it was in fact fruitfu1. 46
Consequently, it appears that the intended result is not a definitional element of incitement under English criminallaw.47 Contrary to many civillaw systems, Canada and
England appear to create the possibility of inchoate li abi lit y for acts of incitement which are not necessarily public in nature.48
American criminal law takes a significantly different view on incitement than
Canada and England. Specifically, the U.S.'s strong adherence to the protection of free speech has led it to proffer a relatively high threshold in criminalizing incitement.49
Presumably one of the most important cases in creating a workable standard for incitement is Brandenburg v. Ohio.50 The issue in that case was whether a Ku Klux Klan leader urging to "send the Jews back to Israel" and "bury the niggers" for "constitutional betterment" were protected by the Constitution's right to freedom of expression.51 The
Court held that such proclamations amounted to an "abstract teaching of violence" which,
43 Conversation with Professor Patrick Healy (10 June & 5 November, 2004). 44 Higgins, supra note 42. 45 Higgins, ibid. at 368. 46 DDP v. Armstrong (2000] Crim. L.R. 379 (D.C.) 47 Conversation with Professor Patrick Healy (10 June, 2004). 48 However, as per Regina v. McLeod (1970), 1 C.C.C. (2d) (B.C. C.A.), it does require there to be a recipient to the counseling, although such person(s) need not be actually incited. See also, Saunders & McMunagle, supra note 30 at 474ff. 49 Schabas, Genocide in International Law, supra note 9 at 267. 50 Brandenburg v. Ohio, 395 U.S. 444 (1969). 51 Ibid. at footnote 1 to the majority opinion.
14 Chapter 1: Prosecuting Incitement at the National Level in the absence of a causal effect between these words and subsequent results, could not be prohibited.52 In fact, as will be discussed below, the standard emanating from that case has been applied to the Genocide Convention Implementation Act.53 Specifically, the
Brandenburg standard only criminalizes speech where two elements merge: firstly, a specifie intent to incite or provoke imminent lawless action, and second, the likelihood that such action be produced.54 Consequently, while U.S. Courts do not insist on a subsequent result as a requisite element of incitement, as Wallenstein notes, they do
"require the imminent probability of resultant criminal activity to a much greater degree" than many other countries.55 As a consequence, the United States represents a departure from Canada's treatment of incitement and may, where imminence of a consequent unlawful act cannot be proved, render considerably different results. ii) Civil Law Systems
Typically, in many civil law systems, incitement is characterized as a form of participation in a completed offence, most commonly complicity.56 Since incitement is absorbed by the act of complicity, as a form of secondary participation, it is only punishable where the subsequent result takes place. 57 As a consequence, the intended result becomes an important definitional element of the crime of incitement. Such a
52 Ibid at 448 citing Noto v. United States, 367 V.S. 290 (1961) at 297. 53 Genocide Convention Implementation Act (Proxmire Act), 50A U.S.c. 18 s. 1093(3) (1978). [Proxmire Act]. 54 Ibid., s. 1091 (d). See also Joshua Wallenstein, "Punishing Words: An Analysis of the Necessity of the Element of Causation in Prosecutions for Incitement to Genocide" (2001) 54 Stan. L. Rev. 351at 373. [Wallenstein]. 55 Wallenstein, ibid. at 374. It is noteworthy that the Canadian test in Keegstra, supra note 39, is disjunctive ("or"), whereas the American test in Brandenburg, supra note 50, is conjunctive ("and"). 56 Akayesu, supra note 5 at para. 552. 57 Schabas, Genocide in International Law, supra note 9 at 266.
15 Chapter /: Prosecuting /ncitement at the National Level
characterization is problematic because it emphasizes the effect of the inciter' s actions on
a person rather than his or her actual intent. Further, as noted by Gopalani:
The argument that tribunals should punish incitement under conspiracy or complicity fails to recognize the damage one inciter can cause, acting alone. Recent cases of genocide demonstrate the substantial role inciters, especially government officiais, play in the commission of genocide. 58 For instance, French cri minai law, which conceptualizes incitement as a form of
participation in an offence (complicity), equates the inciter's level of culpability with that
of the actual author of the crime. 59 In this sense, article 121-6 stipulates: «Sera puni
comme auteur le complice de l'infraction, au sense de l'article 121-7. » Article 121-7
goes on to stipulate:
Est complice d'une autorité ou de pouvoir aura provoqué à une infraction ou donne des instructions pour la commettre. 60
While the last part of article 121-7 could arguably be construed as encompassing liability
even where the substantive crime incited is not subsequently consummated, case law has
generally required a direct result in its interpretation of this article.61 Furthermore, this
article's purview is confined to the modes of conduct explicitly mentioned therein, and
although not overtly stated, the conduct must be direct and unambiguous.62
Despite the foregoing, as is frequently the case in civil law countries, the Code pénal creates carve-out offences (infractions de presse), in which incitement
58 Ameer Gopalani. "The International Standard of Direct and Public Incitement to Commit Genocide: An Obstacle to U.S. Ratification of the International Criminal Court Statute?" (2001) 32 Cal. W. Int'I L.I. 87 at 94. [Gopalani). As noted by the ICTR in Akayesu, supra note 5, "in theory, complicity requires a positive act, i.e. an act of commission" such that an omission would not constitute complicity. (ibid. at para. 548) 59 Incitement has also been conceived of as a form of "provocation" in French criminal law. In fact, the ICTR in Akayesu refers to it in this way in examining the civil law treatment of incitement, supra note 5 at paras. 552-5,557. 60 Art. 121-7, C. pén. [emphasis added]. 61 Conversation with Professor Patrick Healy (31 August & 10 September, 2004). 62 Yves Mayaud, Nouveau Code pénal/Ancien Code pénal, rev. ed. (Paris: Dalloz, 2002) at 2032 [translated by author] [Mayaud). The test for directness, however, under both articles 23 and 24 appears very stringent, if not close to requiring an actual causal link: < 16 Chapter 1: Prosecuting Incitement at the National Level (provocation) is punishable per se. In this sense, articles 23 and 24 work together, although proof of results is granted different significance in both cases. Article 23 stipulates: (L. no 72-546 d 1er juill. 1972) «Seront punis comme complices d'une action qualifiée crime ou délit ceux qui, soit par des discours, cris ou menaces proférés dans des lieux ou réunions publics, soit par des écrits, imprimés, dessins, gravures, peintures, emblèmes, images, ou tout autre support de l'écrit, de la parole ou de l'image vends ou distribués, mis en vente ou exposés au regard du public, (L. no 85-1317 du 13 déc. 1985) « soit par tout moyen de communication audiovisuelle », au auront directement provoqué l'auteur ou les auteurs a commettre ladite action, si la provocation a été suivie d'effet. » 63 Article 24 stipulates in part: (L. no 92-1336 du 16 déc. 1992) «Seront punis de cinq ans d'emprisonnement et de 300 000 F d'amende ceux qui, par l'un des moyens énoncés a l'article précédent, auront directement provoqué, dans le cas ou cette provocation n'aurait pas été suivi d'effet, a commettre une des infractions suivantes: « 1° Les atteintes volontaires a la vie, les atteintes volontaires a l'intégrité de la personne et les agressions sexuelles, définies par le livre II du Code pénal; [ ... ] (L. no 51-58 du 5 janv. 1951) «Seront punis de la même peine ceux qui, par l'un des moyens énoncés en l'article 23, auront fait l'apologie (L. n° 92-1336 du 16 déc. 1992) «des crimes visés au premier alinéa », des crimes de guerre, (L. no 87-1157 du 31 déc. 1987) «des crimes contre l'humanité» ou des crimes ou de délits de collaboration avec l'ennemi. » [ ... ] (L. n 72-546 du r juillet, 1972) «Ceux qui, par l'un des moyens énoncées a l'article 23, auront provoqué a la discrimination, a la haine ou a la violence a l'égard d'une autre personne ou d'un groupe de personnes a raison de leur origine ou de leur appartenance ou de leur non-appartenance a une ethnie, une nation, une race ou une religion déterminée, seront punis d'un an et d'une amende de 300 000 F ou de l'une de ces deux peines seulement. » Although representing an important exception to the general rule that incitement is not punishable per se, this article is confined by the sarne stringent standard for directness as 63 Art. 23 C. pén. [emphasis added]. 17 Chapter 1: Prosecuting Incitement at the National Level articles 121-7 and 23. 64 Interestingly, under these carve-out offences, it appears as though inchoate liability would attach to incitement to discrimination and hatred on the basis of specifie criteria, and can even coyer acts of unsuccessful incitement to crimes other than genocide. 65 This latter construction is highly relevant to the analysis carried out in Chapters II and III of this thesis, and provides authority for an argument in favour of conferring inchoate liability on aIl international crimes generally on the basis of their mutuallevel of gravit y and inherent risk of commission. It is noteworthy that while the variance is greatest between the civil law and common law systems, there is variation within systems as weIl. For instance, although the general principles of French criminal law do not envisage inchoate liability for unsuccessful incitement in cases other than specifie and highly circumvented carve-out offences,66 the Rwandan Penal Code, which is based in part on the French Code pénal,67 appears to create inchoate liability for any act of unsuccessful incitement where the communication is deemed sufficiently direct and public. In particular, article 91(4) of the Rwandan Penal Code creates accompli ce liability for: Ceux qui, soit part des discours, cris ou menaces proférés dans les lieux ou réunions publics, soit par des écrits, des imprimées vendus ou distribués, mis en vente ou exposés dans les lieux ou réunions publics, soit par des placards ou affiches, exposés aux regards du public, auront directement provoqué l'auteur ou les auteurs à commettre cette action, sans préjudice des peines prévues contre les auteurs de provocation à des infractions, même dans le cas ou ces provocations ne seraient pas suivies d'efJet.68 64 «Pour être punissable, la provocation non suivie d'effets doit être une incitation directe, non seulement par son esprit mais par ses termes, à commettre des faits matériellement déterminés, eux-mêmes constitutifs d'un crime ou d'un délit. )) Mayaud, supra note 62 at 2032. 65 Conversation with Professor Healy (31 August, 2004). 66 Arts. 23 & 24 C. pén. 67 William A. Schabas and Martin Imbleau, Introduction to Rwandan Law (Cowansville, Qc.: Yvon Blais, 1997) at 34. As noted by Schabas and Imbleau, "Rwandan criminal law is derived from the Roman Germanic legal tradition, which is characterized by the codification oflegal norms" (ibid.) 68 Art. 91(4), Code pénale, Rwanda reprinted in Université nationale du Rwanda, "Codes et lois du Rwanda", vol. l, 20d ed. (Butare: Université du Rwanda, 1995) at 395 [Rwandan Penal Code]. Interestingly, the ICTR seems to rely on the Rwandan Code to assimilate the common law and civillaw conception of incitement, only to reinforce their differences with regard to a causal element in the prosecution of incitement to genocide later on in the judgment. Article 91(4) of the Code pénale defines an accomplice as: 18 Chapter 1: Prosecuting Incitement at the National Level Interestingly, article 91(4) is a near repli ca of article 23 of the French Code pénal, albeit significantly broader since it explicitly removes the requirement for the intended result. In other words, the Rwandan Penal Code appears to have merged the Code pénal's articles 23 and 24, and created a general offence akin to section 464 of Canada's Criminal Code,69 discussed earlier, providing it with a greater scope of applicability. Gennany' s treatment of incitement also represents an important departure from the French position. Gennany, which equally creates accompli ce liability in a completed offence under section 26 of the Penal Code (Strafgesetzbuch),1° also characterizes incitement as an offence of general applicability under section 111(2), even if "the incitement is unsuccessfur' provided the communication in question is sufficiently direct and public.71 While incitement to genocide could be prosecuted under section 111(2), it is specifically intended to be captured under section 130,72 which catalogues a broad list of acts constituting this offence under Gennan law. The application of this broadened understanding of incitement by sorne civil law nations as an exception to general practice, infonns and strengthens an argument in favour of removing the result requirement as a definitional element of incitement to A person or persons who, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings or through the public display of placards or posters, directly incite(s) the perpetrator or perpetrators to commit such an action without prejudice to the penalties applicable to those who incite others to commit offences, even where such incitementfails to produce results (ibid.) [Emphasis added). 69 R.S., 1985, c. C-46, s. 464; R.S., 1985, c. 27 (1'1 Supp.), S. 60. Section 464 of the Canadian Criminal Code, however, does not impose a public place requirement, and therefore remains significantly broader in reach. 70 German Penal Code as amended as of December 19, 2001, General Part, in The American Series of Foreign Penal Codes, 32 (Buffalo: William S. Hein & Co., Inc., 2002), s. 26 [German Penal Code]. It stipulates: "whoever purposely induces another to purposely commit an unlawful act shan, as an instigator, be puni shed as a perpetrator."(ibid.) 71 Ibid., s. 111(2). 72 Karl Laclmer et al., Strafgesetzbuch (StGB), Kommentar, 25. ed. (München: Beck Juristischer Verlag, 2004), art. 130 [translated by author] [Laclmer]. 19 Chapter 1: Prosecuting Incitement at the National Level crimes other than genocide, notably crimes against humanity (the status ofwhich appears to be contested at international criminallaw). Despite the foregoing discrepancy both between and within systems, and, as we shall see, a certain degree of inconsistent reasoning by the ICTR in Akayesu, many national legal systems and international criminal law have applied the Anglo-Saxon conception to prosecute the crime of incitement to genocide. Consequently, this model serves as an authoritative example of the expansive approach to incitement, and may help enlighten and significantly guide the prosecutorial standard for incitement to other international crimes. In turn, it can help facilitate the harmonization between divergent prosecutorial standards for incitement, creating greater consistency within the body of international criminallaw. Given the foregoing, a significant part of this Chapter will be dedicated to a discussion of incitement to genocide. Il. Criminalizing Incitement to Genocide A. Constitutive Elements i) Speciallntent While there is a debate about the elements comprising the crime of incitement generally, most notably between the common and civil law systems, there appears to be at least general consensus about the requirement of special intent as a constitutive element of the crime of incitement to genocide. In fact, as noted by Ambos, "it is absolutely uncontroversial that genocide requires a do/us specialis.,,73 Specifically, special intent has been defined as: 73 Kai Ambos, "Article 25" in Otto Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Baden Baden: Nomos Verlagsgesellschaft, 1999) [Commentary on the Rome Statu te ] at 485(23). The terms special and specifie will be used interchangeably 20 Chapter 1: Prosecuting Incitement at the National Level the intent to directly prompt or provoke another to commit genocide. It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging. That is to say that the person who is inciting to commit genocide must have himself the specific intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious group as SUCh. 74 Special intent in the context of genocide was also defined by the ICTR in Akayesu as: "the specifie intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged.,,75 Due to the gravity of the substantive crime in question, this special intent crime has been created in virtually all legal systems.76 The Genocide Convention, which is to date one of the most important international instruments defining and criminalizing genocide, characterizes incitement as a distinct crime whose commission can IDCur individual criminal responsibility.77 Specifically, the ICTR has held that incitement must go beyond a "mere or vague suggestion" and must "assume a direct form and specifically provoke another to engage when referring to the intent necessary for the commission of genocide. It must be noted at this juncture that not aIl national criminal codes require a specific intent as a requisite element of genocide. Examples include countries, such as Ghana, Côte d'Ivoire, and several others. See Prevent Genocide International, infra note Ill. 74 Akayesu, supra note 5 at para. 559. 75 Ibid. at para. 498. The Trial Chamber noted: Genocide is distinct from other crimes inasmuch as it embodies a special intent or do/us specialis. Special intent of a crime is the specifie intention, required as a constitutive e1ement of the crime, which demands that the perpetrator c1early seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in 'the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such' (ibid.) 76 Cassese, International Criminal Law, supra note 4 at 191. Despite this fact, tbis is not always speIled out as clearly as in Article II of the Genocide Convention. Cassese calls genocide "the most harrnful and serious international crime." (ibid.) In civil and common law jurisdictions, specific intent is characterized as a constitutive element of an offence, requiring that there be clear intent to see the offence achieved. As noted by the ICTR: "[t]he crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with thé intent "to destroy in whole or in part, a national, ethnic, racial or religious group as such." Kambanda, supra note 14 at para. 16. ILC Draft Code ofCrimes Against the Peace and Security ofMankind, Report of the International Law Commission on the Work ofits Forty-Eighth Session, 6 May - 26 July 1996, G.A.O.R., 51st Sess., Supp. No. 10,30, UN Doc. A/51/10 [/.L.C Draft Code] reprinted in Summary Records of the Meetings of the Forty-Eighth Session, (UN Doc A/5111O) in Yearbook of the International Law Commission, vol. II(2) (New York: UN, 1996), art. 2(3)f. Online: International Law Commission 21 Chapter 1: Prosecuting Incitement at the National Level in a criminal act...,,78 In the Genocide Convention, the crime ofincitement to genocide is listed within the category of 'other acts', such as attempt and conspiracy,79 a designation which recognizes the importance of participation in the overall commission of genocide. However, as noted by Schabas, the fact that these acts are technically not considered genocide seems to belie the level of implication an inciter can have in the commission of genocide.80 While each of these acts has its particular characteristics, notably with regard to the actus reus component,81 the mens rea element of incitement to genocide must concur with that of an actual perpetrator, who must have the "special intent to destroy in whole or in part a groUp.,,82 Paradoxically, however, often the inciter possesses greater intent than the actual perpetrator himself or herself, as in the case where a superior orders a subordinate to commit genocide. 83 As Schabas notes, arguably in such a case "the guilt of the accomplice is really superior to that of the principal offender.,,84 Indeed, as argued by Jacques-Henri Robert, « L'instigateur est un complice plus dangereux que celui qui se borne à apporter aide et assistance, car il pèse sur la volonté ou sur l'intelligence de l'auteur principal ».85 Superior orders are of sorne importance to this discussion because they can, by definition, constitute incitement. As noted by Schabas, command or superior responsibility "differs from ordinary complicity, which exists upon proof that the 78 Akayesu, supra note 5 at para. 557. 79 As noted by Schabas, Genocide in International Law, supra note 9, their characterization does not necessarily make them less grave since some of these acts themselves require a specific intent that the actual perpetrator does not possess. (ibid. at 257). 80 Ibid. 81 Genocide Convention, supra note 3. Article III makes the following acts punishable: a) Genocide b) Conspiracy to commit genocide c) Direct and public incitement to commit genocide d) Attempt to commit genocide e) Complicity in genocide 82 Ibid., art. II. "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." (ibid.) 83 Schabas, Genocide in International Law, supra note 9 at 221. 84 Ibid. at 257. 85 Robert, supra note 25 at 340. 22 Chapter 1: Prosecuting Incitement at the National Level commander ordered the act or otherwise aided and abetted its performance.,,86 In fact, in the Hostages Trial before the D.S. Military Tribunal, it was held that superior orders, even where not executed, can constitute incitement and be punishable per se. 87 As a result, in the context of superior or command responsibility, inchoate liability is extended to acts of incitement to crimes other than genocide. In this sense, although the principal offender often lacks specific intent to commit genocide, which can cause serious evidentiary problems in the successful prosecution of genocide, this holding appears to adequately target a superior who often possesses the requisite intent. 88 a) Public Place As we have seen above, there are divergent Vlews about the "public place" requirement in criminalizing incitement among common and civil law systems. While common law systems do not appear to construe it as a definitional element of the offence, civil law systems generally make an important distinction between private and public incitement, criminalizing only the latter form of incitement. The latter proposition is reflected in the Genocide Convention's standard. As far as the actus reus for the crime of incitement to commit genocide is concerned, there needs to be an utterance or speech which publicly and directly urges 86 Schabas, Genocide in International Law, supra note 9 at 304. 87 Wilhelm List et al., The Hostages Trial. United States Military Tribunal, Nuremberg, 8 July 1947 - 19 February 1948, in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (London: H.M.S.O., 1947-1948) vol. VIII 38. As the Tribunal notes: "The order was clearly un1awfu1 and so recognised by the defendant. He contends, however, that no captured Commissars were shot by troops under his commando This is, of course, a mitigating circumstance but it does not free him of the crime of knowing1y and intentionally passing on a crimina1 order." (ibid at 90). 88 Schabas, Genocide in International Law, supra note 9 at 221. 23 Chapter 1: Prosecuting Incitement at the National Level someone to kill another.89 The International Law Commission (I.L.C.), in its Drafl Code of Crimes Against the Peace and Security ofMankind,9o which was cited authoritatively by the ICTR in the Akayesu case,9! opined that for incitement to be sufficiently "public," words urging for criminal action must reach a number of individuals either in a public place or through the media, such as radio or television.92 Because private incitement was not considered serious enough,93 it was held to be punishable only where a direct and actual causal link between the incitement and the subsequent criminal act could be established.94 The I.L. C. Drafl Code Commentary justifies this distinction by virtue ofthe fact that such a forum increases "the likelihood that at least one individual will respond to the appeal and, moreover, encourages the kind of 'mob violence' in which a number of individuals engage in criminal conduct.,,95 Emphasizing the distinction between the private and public contexts to justify a differential prosecutorial standard for incitement to genocide, the Commission incidentally advocates the view that the common law approach lends itself more suitably to the prosecution of significantly more 'grave' criminal acts. Ostensibly, given that the common law view to incitement (at least as understood by Canada, Britain and the United States), does not appear to require a public element, the imposition of further threshold requirements qualifies this approach at the internationallevel. 89 Akayesu, supra note 5. See also Cassese, International Criminal Law, supra note 4 at 198. Please note while the crime is called "direct and public Ïncitement to genocide", this thesis will examine these elements in the reverse order. 90 1.L.c. Draft Code, supra note 76, art. 2(3)f 91 Akayesu, supra note 5 at para. 556. 92 1.L.c. Draft Code, supra note 76, art. 2(3)f. 93 See also Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960) at 76. 94 1.L.c. Draft Code Commentary, supra note 76, art. 2(16). Schabas, Genocide in International Law, supra note 9 at 266. 95 1.L. C. Draft Code Commentary, ibid. 24 Chapter l: Prosecuting Incitement at the National Level b) Direcfness The "directness" element poses considerably greater challenges in the case of incitement to genocide. While the directness standard was imposed to differentiate incitement from general advocacy, the latter of which is not criminalized in the Genocide Convention, the word "direct" was never defined.96 However, the 1.L. C. Drafl Code Commentary does stipulate that: The tenn "directly" is used to indicate that the individual must in fact participate in some meaningful way in fonnulating the criminal plan or policy, including endorsing such a plan or policy proposed by another.97 As noted by Schabas, the determination of whether something amounts to direct incitement is complicated by the fact that inciters often employ euphemisms to mobilize génocidaires. 98 In the Rwandan context for instance, examples include implied references and double entendres, such as "you refuse to give your blood to your country and the dogs drink it for nothing.,,99 As argued by Special Rapporteur René Degni-Segui, the interim president' s speech urging a crowd "to get to work" was a direct appeal to destroy the Tutsis. IOO Given the foregoing, characterizing such language as insufficiently direct would contravene the drafters' intentions. 101 Indeed, the ICTR Trial Chamber, recognizing such concerns, held that the 'directness' of a speech must be contingent on the cultural and linguistic backdrop against which it is made.102 Ultimately, the ICTR held that incitement to genocide, which is perceived as such by one audience, may not be 96 Gopalani, supra note 58 at 103. 97 l.CL. Draft Code Commentary, supra note 76, art. 2(13). "The planner who fonnulates the detailed plans for carrying out a crime is in some respects more culpable that the perpetrator who carries out a plan to commit a crime that he would not otherwise have committed." (ibid., art. 2(13)). 98 Schabas, Genocide in International Law, supra note 9 at 277. 99 Kambanda, supra note 14 at para. 39(x). 100 'Report of the Special Rapporteur of the Commission of Human Rights on the Situation of Human Rights in Rwanda', UN Doc. A/50/709, annex II, UN Doc. S/1995/915, annex II, UN Doc. E/CN.411995/71, at para. 24, cited in Schabas, Genocide in International Law, supra note 9 at 277. 101 Schabas, ibid. at 277. 102 Akayesu, supra note 5 at para. 496. 25 Chapter 1: Prosecuting Incitement at the National Level understood that way by another audience. J03 Consequently, the characterization of speech as incitement must become a factual query.104 The ICTR's finding that implicit incitement could nonetheless be direct is thus significant. 105 Although such a characterization adequately captures the ambiguity of certain genocidal speech in many contexts, this determination appears to hinder the characterization of incitement as an inchoate or stand-alone crime as envisioned by many common law countries. As noted by Ambos, the fact that "[t]here must be a specific causallink between the act of incitement and the main offence," brings "the concept of incitement even doser to ordinary forms of complicity, such as instigation, solicitation or inducement."J06 He concludes that this concept therefore: los es its original pUi-pose, which is the prevention of an uncontrollable and irreversible danger of the commission of certain mass crimes. For if an individual urges another individual known to him to take criminal action he or she has the same control over the actual perpetrator as an instigator or any other accomplice causing a crime. 107 In this sense, the Rwanda Tribunal's requirement for the contextualization of certain speech places a considerable strain on the idea that unsuccessful incitement to genocide may nevertheless be punishable where the requisite mens rea element of the crime is satisfied. As noted by Gopalani, this is because "[p]roof that killings occurred immediately after harmful speech, an actuallink, could never be established for a case in which the accused held the requisite intent to commit genocide and directly encouraged others to kill, but whose incitement was unsuccessful."J08 Consequently, where the inciter 103 Ibid. at para. 557. 104 Ibid. at para. 558. 105 Ibid. at para. 557. The Trial Chamber noted: "The Chamber will therefore consider on a case-by-case basis whether, in light of the culture of Rwanda and the specifie circumstances of the instant case, acts of incitement can be viewed as direct or not, by focusing mainly on the issue ofwhether the persons for whom the message was intended immediately grasped the implication thereof." (ibid.) 106 Ambos, Commentary on the Rome Statu te, supra note 73 at 487(28). 107 Ibid. 108 Gopalani, supra note 58 at 107. 26 Chapter I: Prosecuting Incitement at the National Level has the specific intent necessary for the cnme of incitement, the audience's response thereto should merely reinforce a finding of specific intent on the part of the perpetrator rather than constitute itself an indispensable element of the crime. 109 Although a standard for indirect incitement is challenging to define, it is clear that "[ c ]ourts should not punish ambiguous speech that borders on indirectness unless the alleged perpetrator possessed th e reqUlslte. . mens rea to commlt"d genocl e. ,,110 H) The Element of Causation a) The Genocide Convention on the Prevention and Punishment of the Crime of Genocide The Genocide Convention of 1948, a multilateral treaty signed and ratified by 136 countries to date, III was the first text to explicitly define and prohibit the crime of genocide and to impose individual criminal responsibility regardless of a perpetrator' s official status. 112 The prohibition against genocide was spurred by the horrors of the holocaust, which taught the world about a specific crime whose gravit y and scale had not previously been envisioned in international law. While there is an abundance of international instruments that are meant to coyer genocide and incitement thereto, such as 109 Mugesera v. Canada (Minister of Citizenship and Immigration) [2003] F.C.A. 325 [2004] 1 F.C.R. 3 (F.C.A.) [Mugesera (F.C.A.)]. Décary J.A., however, makes a valid point in stating that: The incitement might be direct or indirect, express or implied, open or covert, but in the last analysis it is the speaker's intent that must be determined. In this sense, the rules for analysis of speeches laid down, [ ... ] should not obscure the fact that where incitement to murder, hatred or genocide is concerned, the focus is on the speaker rather than on the audience. If it is sho)Vn that a speaker used a single word or phrase in a speech fully aware that the word or phrase would lead his immediate audience to commit reprehensible acts, he can be found guilty whatever meaning may be given to the speech by objective analysis. The harshest words may be innocent and the gentlest words may be culpable [para. 209]. 110 Gopalani, supra note 58 at 113 [emphasis added]. III Genocide Convention Status Report, online: Prevent Genocide International 27 Chapter 1: Prosecuting Incitement al the National Level for instance the International Convention on Civil and Political Rights,113 and the Convention on the Elimination of Ali Forms of Racial Discrimi~ation/ 14 the Genocide Convention remains the most explicit and extensive instrument criminalizing this crime. Despite this, the Genocide Convention does not make explicit reference to the need for a result, which is determinative of a prosecutorial standard for this crime and illustrative of a divide between civil and common law systems, notably for crimes other than genocide. The drafting records of the Genocide Convention, however, help clarify this exclusion. liS In fact, as the ICTR explicitly recognized in Akayesu, the drafters' deliberations, as evidenced in the Travaux Préparatoires, wh ether to explicitly 113 International Covenant on Civil and Political Rights, 19 December 1966, 999 V.N.T.S. 171, arts. 9-14, Cano T.S. 1976 No. 47, 6 LL.M. 368 (entered into force 23 March 1976, accession by Canada 19 May 1976) [CCPR]. Article 20 provides an important qualification to its guarantees of freedom of expression (as per Article 19(1-2» in stipulating that: "Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law."(ibid.) Given that genocide is considered the gravest crime, it seems logical to infer that its threshold would be as least as low if not lower than incitement to hatred. In other words, if incitement to hatred does not require causality, neither should incitement to genocide by virtue of its level of gravity. 114 International Convention on the Elimination of Ali Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 V.N. GAOR Supp. (No.l4) at 47, V.N. Doc. A/6014 (1966), 660 V.N.T.S. 195 (entered into force Jan. 4, 1969, accession by Canada Oct. 14 1970) [CERD]. The CERD contains a comprehensive prohibition against incitement to racial hatred, explicitly condemning "aIl propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin" and urging signatory States to adopt legislation criminalizing "all incitement to, or acts of, such discrimination."(ibid.) While this Convention does not explicitly mention incitement to genocide, it clearly intends to target this crime. Specifically the CERD stipulates in article 4(a) that States: shaH declare an offence punishable by law ail dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as weil as aIl acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof(ibid.) See Michael A.G. Korengold, "Les sons in Confronting Racist Speech: Good Intentions, Bad Results, and Article 4(a) of the Convention on the Elimination of AlI Forms of Racial Discrimination" (1993) 77 Minn. L. rev. 719. Interestingly, there is no express requirement of causation, although one commentator argues that Article 4(a) does require the audience's "violent or discriminatory reaction to the racist speech." (ibid. at 723). Given that no distinction is made between the incitement to genocide and the incitement to other crimes, this strict reading would have the incidental effect of raising the prosecutorial standard for the crime of incitement to genocide. While not explicitly stated, such a strict view would presumably require "a violent or discriminatory reaction" to result in an overt act. Such an imposition, however, seems at odds with a growing international recognition that incitement to genocide is punishable even without a subsequent act. 115 David Nersessian, "The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals" (2002) 37 Tex. Int'l L.J. 231 at 244 [Nercessian]. As Nersessian points out, however, caution must be exercised in holding drafting records as ultimately binding in themselves. Citing the Drafting Committee Chairman, he notes that certain opinions "merely indicated that a majority of the drafting committee ascribed a certain interpretation to a particular text." (ibid.). 28 Chapter 1: Prosecuting Incitement at the National Level criminalize unsuccessful incitement clearly denotes that such an approach was envisioned by the drafters despite its eventual rejection. 116 In fact, the first and second Drafts of the Genocide Convention explicitly criminalize "direct public incitement to any act of genocide whether the incitement be successful or not.,,117 Further, the Drafts stipulate that: AIl forms of public propaganda tending by their systematic and hateful character to promote genocide, or tending to make it appear as a necessary, legitimate or excusable act shaH be punished. 1I8 Such an article, which relies on the systematic and hateful nature of the message and its possible rather than actual impact on a target audience, seems to confirm the overall sentiments of the drafters with regard to the place that results should be granted III criminalizing incitement to genocide. Relying on the general tone of the Travaux, the Akayesu Trial Chamber seems to suggest that the eventual rejection of such an approach was on purely procedural rather than substantive grounds. 119 It concludes that "it cannot thereby be inferred that the intent of the drafters was not to punish unsuccessful acts of incitement.,,120 Consequently, the Court appears to reason that because there is no explicit requirement for incitement to be successful, al! acts of incitement to genocide, even if unsuccessful, are punishable. 12I As a result, the ICTR in Akayesu characterizes incitement as a specifie offence, inchoate and 116 Akayesu, supra note 5 at para. 561. 117 Convention on the Prevention and Punishment of the Crime of Genocide, Secretariat Draft: First Draft of the Genocide Convention, Prepared by the UN Secretariat [May] 1947 [UN Doc. E/447], art. 11(2). online: Prevent Genocide International: 29 Chapter 1: Prosecuting Incitement at the National Level punishable in its own right, "even where such incitement failed to produce the result expected by the perpetrator".122 As observed by the Tribunal, it is the seriousness of the substantive crime involved which warrants such an exceptional measure. 123 Naturally, proof of results, while not necessary, facilitates the characterization of speech as incitement to genocide. 124 To this end, an actual causallink need not be proved, although the existence of killings preceding the speech inevitably reinforces the "perception of the legal culpability of the accused"125 and as such, can be an important element in the Prosecution's case. As was noted by the ICTR in Akayesu, while actual causation must not be established, there must nonetheless be a possible causal link between the mCltement. . an d su b sequent acts. 126 Although sorne civil law systems have defined incitement to genocide as a form of specific participation in a crime, the majority of civillaw systems have conceptualized it as a form of complicity.127 The legal consequences that flow from such a characterization have to a large extent been addressed in section I(A). In the Akayesu case for instance, the ICTR equated the common law's notion of incitement with the civil law' s concept of provocation. As noted by the Tribunal, "provocation, the equivalent of incitement, is regarded as being direct where it is aimed at causing a specific offence to 122 Akyayesu, supra note 5 at para. 562. 123 Ibid. 124 Wallenstein, supra note 54 at 394. 125 Ibid. at 398. 126 Akayesu, supra note 5 at para. 349. Specifically, the ICTR noted: "With regard to the allegation made in paragraph 14 of the Indictment, the Chamber feels that it is not sujJicient ta simply establish a possible coincidence between the Gishyeshye meeting and the beginning of the killing of Tutsi in Taba, but that there must be proof of a possible causal link between the statement made by the Accused during the said meeting and the beginning of the killings." (ibid.) 127 Ibid. at para. 552. As noted by the Akayesu Trial Chamber, the Rwandan Penal Code, supra note 68 follows this model (ibid. at para. 553). 30 Chapter 1: Prosecuting Incitement at the National Level be committed.,,128 While provocation is held by the Tribunal to share the same elements as direct and public incitement, the Tribunal seems to reinsert an additional element of causation. Its finding that "[t]he prosecution must prove a definite causation between the act characterized as incitement, or provocation in this case, and a specifie offence,,,129 is curious. As noted by Schabas, "[t]he requirement is puzzling. Because direct and public incitement is by its nature inchoate or incomplete, it is impossible to prove such a causal link.,,130 There are several points to note at this juncture. Firstly, this holding seems to challenge the credibility ofthe ICTR's finding that unsuccessful incitement can indeed be punishable in both legal systems. As such, instead of harmonizing the civil and common law systems in their respective conceptions of incitement, it highlights stark discrepancies between them. This in turn underscores certain jurisdictional problems faced by international criminal courts, an issue to which this thesis will devote considerable attention in Chapter II. Second, the Tribunal' s finding obfuscates international efforts to harmonize both legal approaches into a workable international standard, which should seek to prevent genocide before it commences. Moreover, the imposition of a causal element often engenders considerable evidentiary hurdles. That is, given the multitude of actors and stages involved in provo king genocide, establishing the relative weight of each source can prove to be a highly onerous task. Relying on such an element in order to retroactively criminalize incitement seems to diminish the true impact of the crime and 128 Ibid. at para. 557. 129 Ibid. [emphasis added]. 130 William Schabas, "Hate Speech in Rwanda: The Road to Genocide" (2000) 46 McGill L.J. 141 at 161 ["The Road to Genocide"]. However, it is not because an act is characterized as inchoate that a possible causallink is impossible to establish between incitement and subsequent acts. 31 Chapter 1: Prosecuting Incitement at the National Leve! the inciter' s intentions at the time of its commission. Regrettably, the fact that causation could be established in the case of Akayesu led the Tribunal to dismiss any further constructive discussion surrounding unsuccessful incitement. 131 b) The I.L.C. Draft Code of Crimes Against the Peace and Security of Mankind Although the 1.L. C. Draft Code, which is intended to coyer genocide (and incitement thereto), has never been in force, it merits sorne discussion because it specifically draws on the Genocide Convention to come to the opposite conclusion as the ICTR in Akayesu. During the drafting process, the role of direct effects in the characterization of incitement to genocide was arduously debated.132 The final product created a general offence of "direct" and "public" incitement, applicable to aIl crimes including genocide, punishable in the instances when a crime "in fact" occurS. 133 However, the I.L.C.'s reliance on article III(c) of the Genocide Convention in reaching this decision is ostensibly the result of a grave misunderstanding. 134 As Schabas notes, the departure from the spirit of article III( c) is emphasized by the criminalization of "abetting" under article 2(3)(d) ofthe same Code, a crime which in many ways resembles incitement, but is punishable only when there is a resulting unlawful act. 135 Accordingly, the interplay between these two acts which can result in genocide creates a certain redundancy,136 incidentally strengthening the argument in favour of removing this l3I Ibid. at 157. 132 Ibid. at 266-71. 133 IL.e. Drafl Code, supra note 76, art. 2(3)(f). [Emphasis added]. 134 Schabas, "The Road to Genocide" supra note 130 at 155. 135 Ibid. at 156. Schabas, Genocide in International Law, supra note 9, further notes "as a general rule, incitement qua complicity ("abetting") is only committed when the underlying crime occurs." That is, "under both the Romano-Germanie and common law traditions, there is no crime of incitement if nobody is incited." (ibid. at 266). 136 Schabas, "The Road to Genocide", supra note 134 at 156. 32 Chapter 1: Prosecuting Incitement at the National Level element from the crime of incitement to genocide both in its own right and so as to create harmony between the provisions of the 1.L. C. Drafi Code. Arguably, the conspicuous silence with regard to results in the foregoing instruments must be read as an important factor in determining the relative weight this element should be granted in incitement prosecutions. Ostensibly, although the resulting unlawful act can play an important evidentiary role, it is not indispensable to a conviction. While there is a debate as to the precise definition of incitement to commit genocide at the national level, there appears to be sorne consensus, based in part on international conventions, treaties, and interpretations by international criminal bodies, notably the ICTR, that incitement to genocide should be characterized as a specific crime, the commission of which can incur criminal liability irrespective of whether or not it leads to the intended results. Although the civilian tradition is generally reluctant to part with the result requirement, many civil law systems have created a carve-out offence in the case of incitement to genocide, recognizing that in order to prevent genocide, it is crucial to target incitement per se. 137 As noted previously, while there is sorne discrepancy between the major legal systems of the world with regard to the elements of incitement to genocide, there is also variance within the respective systems themselves such that specifie approaches are different from country to country.138 As a result, it is imperative to briefly examine sorne national approaches. 137 ln Akayesu, supra note 5, the ICTR refers to these as infractions formelles - "acts constituting an offence per se irrespective of their results", which must be distinguished from infractions matérielles - which constitute strict liability offences. As noted by the Akayesu Trial Chamber, "Indeed, as is the case with inchoate offences, in [infractionsformelles], the method alone is punishable." (ibid. at para. 562). The preventative role of international criminal law in justifying the imposition of inchoate liability on certain crimes will be discussed in more detail in Chapter III. 138 Schabas, Genocide in International Law, supra note 9 at 259. 33 Chapter 1: Prosecuting Incitement at the National Leve! B. National Approaches to the Crime of Incitement to Genocide i) Common Law Systems a) Canada Canada's Criminal Code has enacted a specifie offence that reflects its obligations arising under the Genocide Convention. Section 318 stipulates: Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. 139 While criminalizing incitement to genocide, this provision do es not sufficiently specify the elements constituting this crime, providing very little guidance to courts. Fortunately, section 464, dealing with 'counseling,' examined earlier, can help inform a reading of section 318, notably with regard to the importance of results for the crime of incitement under Canadian law. However, it has been argued that section 464 insufficiently defines the mens rea and actus reus components of this crime, leaving the courts to interpret its scope instead. 140 Judicial bodies have had the opportunity to clarifY the Canadian position on the matter in Léon Mugesera v. Canada (Minister of Citizenship & Immigration), a case which has provoked great contention with regard to Canada' s stance on the matter. In that case, the respondent (former advisor to Juvenal Habyarimana) made an infamous speech in Kabaya, Rwanda, on November 22, 1992, inciting Hutus to hatred and killing of Tutsis and Hutu moderates. While the genocide did not commence until more than a year thereafter, the Immigration and Refugee Board (lRB) linked several killings of Tutsis immediately preceding the speech to the inflammatory words pronounced by 139 R.S., 1985, c.C-46, s.318; 2004, c.l4, s.l. 140 Saunders & McMunagle, supra note 30 at 474. 34 Chapter 1: Prosecuting Incitement at the National Level Mugesera. 141 Its finding is significant for several reasons, sorne ofwhich deserve mention here. Firstly, given that Mugesera's speech significantly preceded the ensuing genocide in time, the IRB' s finding is illustrative of the fact that the lack of temporal proximity is not necessarily determinative of imminence and directness. Second, the IRB seems to discard causality as a constitutive element of incitement, placing emphasis on a causal nexus merely to reinforce rather than to make a finding of guilt. This decision appears to be in line with the spirit of the international conventions, most notably the Genocide Convention. Mugesera' s application for judicial review was denied with regard to incitement to genocide at the Trial Division of the Federal Courtl42 but allowed at the Federal Court of Appeal. I43 The Federal Court of Appeal held that Mugesera's speech did not constitute incitement, basing its finding in part on the lack of causal nexus between the inflammatory speech and the genocide. 144 Regrettably, the differential findings by the IRB and the Federal Court seem to be based on a grave misunderstanding about the true nature of incitement to genocide. Appeal for leave to the Supreme Court has since been granted and it is hoped that the Canadian Supreme Court will concur with the IRB's treatment of the issue, which appears to adequately reflect the international position. Hopefully, the pending decision by judges of the Supreme Court will rectify the regrettable oversight on the part of the Federal Court and signify the important 141 Canada (Minister of Citizenship & Immigration) v. Mugesera, Immigration & Refugee Bd., File No. QML-95-00171 (July 11, 1996) (Tunnel, Arb.). Adjudicator Turrnel held that Mugesera's removal from Canada could be justified on the basis of sections 27(l)(a.l), 27)(l)(a.3) or 27(l)(g) of the Canada Immigration Act, R.S.C. 1985, c. 1-2. This was repealed and replaced by the Immigration and Rejùgee Protection Act, S.C. 2001, c. 27. Arbitrator Turrnel's finding was affinned by the Appeal Division of the IRB. 142 Mugesera (F.C.A), supra note 109. 143 Mugesera v. Canada (Minister ofCitizenship and Immigration), [2001] 4 F.C. 421 (T.D) [2001] 205 F.T.R. 28. Nadon J. allowed the application of judicial review on allegations C (crimes against humanity) and D (misrepresentation) but not on A (incitement to murder) and B (incitement to genocide and hatred), fmding the latter two allegations to have a valid basis in the case (ibid. at para. 58). 144 Mugesera (F.C.A), supra note 109 at para. 210. 35 Chapter 1: Prosecuting Incitement at the National Level clarification and reinforcement of Canada's commitment to the prosecution of incitement to genocide. b) The United States Despite not explicitly requiring a causal nexus between incitement and subsequent acts, the U.S. seems to employa more onerous standard to prosecute incitement to genocide, seemingly diverging from the spirit of the Genocide Convention to which it is party. Indeed, its approach compared to that ofCanada's, at least in theory, is illustrative of the variance existing within legal systems. It must be noted, however, that the U.S. position is arguably extreme in this regard. Indeed, as noted by Dworkin, "[t]he United States stands alone, even among democracies, in the extraordinary degree to which its Constitution protects freedom of speech and of the press.,,145 The basis for its position is the United States Constitution, which, in its First Amendment stipulates that the government is prohibited from making law "abridging the freedom of speech, or of the press.,,146 Indeed, the U.S. Supreme Court has held that while the right to freedom of speech and the press are guaranteed rights, they are not absolute and those who abuse them will attract penalties. 147 The Genocide Implementation Act has adopted the Brandenburg standard for incitement and defines imminence as requiring an inciter to urge another "to engage imminently in conduct in circumstances under which there is a substantial likelihood of imminently causing such conduct." 148 The regrettable consequence of such a standard is that "the First Amendment protects one who explicitly 145 Ronald Dworkin, Freedom 's Law: The Moral Reading of the American Constitution (Massachusetts: Harvard University Pres, 1996) at 195, referring to the decision of New York Times v. Sullivan, 376 U.S. 254 (1964). 146 U.S. Const, amend.1. 147 People v. Talley, 360 U.S. 928 (1959), rev'd on other grounds, 363 U.S. 60 (1960). 148 Proxmire Act, supra note 53, s. 1093(3). 36 Chapter 1: Prosecuting Incitement at the National Level urges specifie criminal action as long as the action is not imminent.,,149 Inevitably, as has been argued, a determination of imminence will rely heavily on the finding of a causal nexus between the incitement and subsequent acts. 150 H) Civil Law Systems a) France France has incorporated its obligations arising under the Genocide Convention into its domestic laws under section 211-1 of the French Code pénal. 151 However, its proscription do es not make explicit mention of incitement to genocide. Curiously, however, it appears to envisage and specifically criminalize conspiracy to genocide. Article 212-3, which stipulates: La participation à un groupement fonné ou à une entente établie en vue de la préparation, caractérisée par un ou plusieurs faits matériels, de l'un des crimes définis par les articles 211-1,212-1 et 212-2 est punie de la réclusion criminelle à perpétuité. 152 Ostensibly, incitement to crimes other than specifie carve-out offences is meant to be covered by provisions dealing with criminal participation in a completed offence, notably provocation, which as was noted above, appears to require proof of results for acts of incitement falling outside of infractions de presse. However, liability per se for incitement to genocide is presumably created by virtue of the exception to the rule as per article 24. 149 Gopalani, supra note 58 at 108. 150 Ibid. This is a threshold standard which differs greatly from that applied in Canada under s. 319. 151 Art. 211-1 C. pén.: Constitue un génocide le fait, en exécution d'un plan concerté tendant à la destruction totale ou partielle d'un groupe national, ethnique, racial ou religieux, ou d'un groupe détenniné à partir de tout autre critère arbitraire, de commettre ou de faire commettre, à l'encontre de membres de ce groupe, l'un des actes suivants: atteinte volontaire à la vie; atteinte grave à l'intégrité physique ou psychique; soumission à des conditions d'existence de nature à entraîner la destruction totale ou partielle du groupe; mesures visant à entraver les naissances; transfert forcé d'enfants. (ibid.) 152 Art. 212-3 C. pén. 37 Chapter 1: Prosecuting Incitement at the National Level b) Germany As a party to the Genocide Convention, Gennany currently makes genocide puni shabl e under section 6 of the Code of International Crimes (Volkerstrafgesetzbuch),153 which was implemented to fulfill Gennany's legal obligations under the Rome Statute, although incitement to genocide is not explicitly listed. However, section 6 of the Code of International Crimes, which constitutes lex specialis, is supplemented by the Penal Code. 154 According to one Commentator, section 130 of the Penal Code, "Agitation of the People" (Volksverhetzung), was specifically meant to target incitement to genocide. 155 It stipulates that: Whoever: 1. with respect to writings (Section Il subsection (3)), which incite hatred against segments of the population or a national, racial or religious group, or one characterized by its folk customs, which calI for violent or arbitrary measures against them, or which assault the human dignity of others by insulting, maliciously maligning or defaming segments of the population or a previously indicated group: a) disseminates them; b) publicly displays, posts, presents, or otherwise makes them accessible; c) offers, gives or makes accessible to a person under eighteen years; or (d) produces, obtains, supplies, stocks, offers, announces, commends, undertakes to import or export them, in order to use them or copies obtained from them within the meaning of numbers a through c or facilitate such use by another; or 2. disseminates a presentation of the content indicated in number 1 by radio, shall be puni shed with imprisonment for not more than three years or a fine. 153 Volkerstrafgesetzbuch, BGBl 1 2002, 2254, 30 June 2002, FNA 453-21 [Code ofInternational Crimes]. This section has replaced Section 220 of the Penal Code, which formerly prohibited genocide and has served to clarifY Germany's willingness to prosecute a person for genocide against a single person, ifthat person had the specific intent to target that person due to its association in a group which he or she intended to destroy in whole or in part. Andreas Zimmermann, "Bestrafung vôlkerrechtlicher Verbrechen durch deutsche Gerichte nach In-Kraft-Treten des Vôlkerstrafgesetzbuchs" (2002) 42 NJW 3068 at 3069. 154 A special offence for the incitement to genocide in the Penal Code, Special Part, supplements Section 6 of the Code of International Crimes. Frank Jarasch and Claus Kress "The Rome Statute and the German Legal Order" in The Rome Statute and Domestic Legal Orders, Claus Kress & Flavia Lattanzi (eds.) Vol. 1 (Baden Baden: Nomos Verlagsgesellschaft, 2000) at 95. 155 Lackner, supra note 72, s. 130. 38 Chapter 1: Prosecuting Incitement at the National Level Similar to s. 319 of the Canadian Criminal Code, this provision' s reach is so broad that it appears to create liability for unsuccessful incitement to a multitude of acts that could directly or indirectly contribute to the "agitation of the people", including genocide. Interestingly, this provision appears to envisage private incitement, notably under 130(c). Another important provision, under which public incitement to crimes, including genocide,156 can be prosecuted, is section 130(a), "Instructions for Crimes" (Anleitung zu Straftaten). It stipulates: (1) Whoever disseminates, publicly displays, posts, presents, or otherwise makes accessible a writing (Section Il subsection (3)) which is capable of serving as instructions for an unlawful act named in Section 126 subsection (1), and is intended by its content to encourage or awaken the readiness of others to commit such an act, shaIl be puni shed with imprisonment for not more than three years or a fine. (2) Whoever: 1. disseminates, publicly displays, posts, presents, or otherwise makes accessible a writing (Section II subsection (3)) which is capable of serving as instructions for an unlawful act named in Section 126 subsection (1); or 2. gives instructions for an unlawful act named in Section 126 subsection (1), publicly or in a meeting, in order to encourage or awaken the readiness of others to commit such an act, shaIl be similarly punished. Aside from creating a general incitement offence under s. 111 (2), German criminal law appears to create specific instances of incitement by which a broad range of acts, including incitement to genocide, can be punished per se under sections 130 and 130(a). Inevitably, Germany' s commitment to prosecuting genocide and incitement to hatred is in large part attributable to its recent grueling history. 156 German Penal Code, supra note 70, s. 126(1)(2). S. 126(1)(2) sets forth: murder, manslaughter or genocide (Sections 21 1,212 or 220a). 39 Chapter 1: Prosecuting Incitement at the National Level C. Conclusion Although the foregoing demonstrates that there is variance within legal systems themselves, general practice among common law countries appears to construe incitement both as a forrn of participation in a completed offence (contingent on the result) and as an inchoate offence of general application (independent of the result). Incitement to international crimes, including genocide, can be prosecuted under the latter construction. Conversely, while there is equally variance within civilian systems, the civil law, which construes incitement as a forrn of participation in a completed offence (notably complicity), generally favours proof of results, at least for incitement to crimes other than genocide. Nevertheless, many national systems create more or less expansive carve-out offences (and in sorne cases criminalize incitement as a general offence) to prosecute other acts of incitement where these are considered particularly dangerous to society. International criminal law characterizes incitement in two possible ways: as a distinct inchoate offence in the case of genocide, and as a mode of participation in a completed offence for aIl other crimes within its jurisdiction. An exarnination will be undertaken to deterrnine the feasibility of creating inchoate liability for incitement to aIl international crimes, a task which challenges both the hierarchal confines presently in place for these crimes as weIl as the unique jurisdictional frarnework of the ICC. Exposing a possible global trend in the body of international jurisprudence will facilitate the promulgation of a workable prosecutorial standard at the ICC, a court which has at least the potential to significantly influence the prosecution of incitement to international crimes. 40 Chapter II: Prosecuting Incitement at the International Level CHAPTER Il: PROSECUTING INCITEMENT AT THE INTERNATIONAL LEVEL 1. International Jurisprudence: From Nürnberg to Now A. The International Military Tribunal at Nürnberg The International Military Tribunal at Nürnberg (lMTN) , established by the Allied Occupying Powers, was the first international tribunal to try the mastenninds behind the most heinous international crimes committed during World War II. Although genocide was committed on a large scale against the Jewish people during WWII, a definition of that crime was only proffered subsequent to the Nürnberg Tribunal's work. 157 Consequently, the Nürnberg Charter makes no mention of genocide. Tragically, as noted by Schabas, "genocide almost invariably escaped prosecution because it was virtually always committed at the behest and with the complicity of those in power.,,158 Despite this omission, however, sorne discussion regarding the causal element in prosecuting incitement was embarked upon in the context of war crimes constituting crimes against humanity. Regrettably, however, any guidance that can be derived therefrom is hampered by the fact that the Nürnberg Tribunal seems confused about the level of direct causation needed to effectively prosecute incitement. For instance, in the Julius Streicher case,159 the judges, using a more lenient standard of causality, held the defendant guilty of incitement to persecute by publishing newspapers which directly called on the people to extenninate the Jews, employing the subsequent holocaust to infer 157 Polishjurist Raphael Lemkin is credited for having proffered the concept of genocide, a word derived in part from the Greek word "genos", connoting race or tribe, and in other part from the Latin word "cide", connoting the act of killing. See generally, Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis ofGovernment, Proposais for Redress (Washington: Carnegie Endowment for W orld Peace, 1944) at 79. 158 Schabas, Genocide in International Criminal Law, supra note 9 at 14-15. 159 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November- 1 October, 1946, Vol. 1 (Nuremberg: International Military Tribunal at Nuremberg, 1947) at 301-04. [Streicher]. 41 Chapter Il: Prosecuting Incitement at the International Leve! the success of such incitement. 160 That is, the effect of Streicher's newspaper Der Stürmer was not measured by any particular act of violence but rather, to put it in the words of the ICTR Trial Chamber in Nahimana, by the overall "climate of harm" it created among the German population. 161 Consequently, the Tribunal convicted Streicher of incitement to murder and extermination of the Jewish people as a form of persecution on political and racial grounds constituting a crime against humanity.162 Conversely, in the Hans Fritzsche case, the judges, seemingly adopting a stricter approach, required a high standard of causality between inciting words and the subsequent event, acquitting the defendant for lack of a sufficient causal nexus despite "strong statements of a propagandistic nature.,,163 Notwithstanding differential standards, the reliance on a causal nexus in both cases impeded a more extensive discussion on causality generally.164 Overall, the Nürnberg tribunal's apparent adherence to a causal element, despite an inconsistent standard, rend ers its precedential value scant. As a result, while incitement was recognized as early as Nürnberg and is a crime that has surfaced in proceedings before the ad hoc criminal tribunals for the former Yugoslavia and Rwanda, its contours are still blurred in the existing body of international criminallaw. Despite the growing use of the Anglo-Saxon conception of incitement in the case of genocide, the civilian approach appears to be dominantly applied by international 160 Streicher, ibid. at 304. 161 Nahimana, supra note 16 at para. 1073. AU three defendants were dec1ared guilty of direct and public incitement to commit genocide, and crimes against humanity (extermination and persecution) for their involvement in the Radio Television Libre des Milles Collines (RTLM) (ibid. at paras. 1092-94). In the actual Streicher judgment, the IMT notes that Streicher injected poison "into the minds of thousands of Germans which caused them to follow the National Socialist policy of Jewish persecution and extermination" (Streicher, ibid. at 302). 162 Streicher, ibid. at 304. 163 Trial of the Major War Crirninals Before the International Military Tribunal, supra note 159 at 338. 164 Wallenstein, supra note 54 at 394. 42 Chapter II: Prosecuting Incitement at the International Level criminal bodies in the case of incitement to aIl other crimes. 165 Consequently, the crime of incitement reinforces a strong hierarchical scale of 'gravity' between international crimes, genocide being at the highest scale. In other words, this approach gives rise to di fferenti al treatment of incitement depending on the category of crime to which it attaches. The conceptual and practical problems of these diverging standards will be addressed in more detail in Chapter III. B. The International Criminal Tribunal for Rwanda While the International Criminal Tribunal for the Former Yugoslavia (ICTY) is the forerunner of the International Criminal Tribunal for Rwanda (ICTR), it is the ICTR which has been most instrumental in developing jurisprudence on incitement, notably direct and public incitement to genocide. 166 In fact, as noted by the ICTR in Nahimana, "the ICTR jurisprudence provides the only direct precedent for the interpretation of 'direct and public incitement to commit genocide.",167 The ICTR Statute contains two main provisions criminalizing incitement. The tirst one, article 6(1), dealing with "instigation," stipulates: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 and 5 of the present Statute, shall be individually responsible for the crime. 168 165 See generally Schabas, Genocide in International Law, supra note 9 and Cassese, International Criminal Law, supra note 4 at 189-90. Kittichaisaree, supra note 18 at 247-48, Cassese, supra note 4, notes that there must be two requirements: 1) that the incitement be direct and explicit and 2) that the commission of the crime be followed up (ibid.). Conversation with Professor Patrick Healy (10 September & 12 October, 2004). 166 A conviction was entered on direct and public incitement to commit genocide in the following cases at the ICTR: Akayesu, supra note 5 at count 4, Nahimana, supra note 16, Nahimana at count 3 (para. 1092), Barayagwiza at count 4 (para. 1093) and Ngeze at count 4 (para. 1094), Kambanda, supra note 14 at count 3, Prosecutor v. Niyitegeka (2003), Case No. ICTR-96-14-T (International Criminal Tribunal for Rwanda) at count 4 (para. 480), Prosecutor v. Ruggiu (2000), Case No. ICTR-97-32-I, (International Criminal Tribunal for Rwanda, Trial Chamber) at count 1 [Ruggiu]. 167 Nahimana, supra note 16 at para. 1011. 168 Statu te of the International Criminal Tribunalfor Rwanda SC Res. 955, UN SCOR, 1994, UN Doc. SI RES/955, art. 6(1) [ICTR Statute]. 43 Chapter II: Prosecuting Incitement at the International Level The Akayesu Trial Chamber defined instigating to mean "prompting another to commit an offence,,,169 a definition which the Blaskic Trial Chamber held to be sufficiently expansive so as to encompass both positive acts and omissions as weIl as express and implied conduct. 170 The second provision, article 2(3)( c), specifically deals with incitement to genocide and adopts the Genocide Convention's wording, both in its · .. 171 express terms an d ItS omIssIOns. Although there is no mention of a need for results III either provision, the Trial Chamber in Akayesu relies on the difference between the concepts of "instigation" and "incitement" to make the following finding: the fonn of participation through instigation stipulated in Article 6( 1) of the Statute involves prompting another to commit an offence; but this is different from incitement in that it is punishable only where it leads to the actual commission of an offence desired by the instigator. 172 As stated more specifically by the Blaskic Trial Chamber: The ordinary meaning of instigating, namely, "bring about" the commission of an act by someone, corroborates the opinion that a causal relationship between the instigation and the physical perpetration of the crime is an element requiring proof. 173 It is noteworthy that the French version of the Statute uses the word "incitation" in both provisions, a fact which complicates the attribution of differential prosecutorial standards to 'different' legal concepts. 174 This is especially so when one considers, as the Trial 169 Akayesu, supra note 5 at para. 482. 170 Blaskic, supra note 4 at para. 280. 171 This resembles the ICTY position. 172 Akayesu, supra note 5 at para. 482. 173 Blaskic, supra note 4 at para. 280, drawing on the Concise Oxford Dictionary, lOth ed., s. v. "investigate" . 174 Le Statut du Cour Pénal International, A/CONF. 183/9, 17 Juillet 1998, l'article 6(1). Online: 44 Chapter II: Prosecuting Incitement at the International Level Chamber did, that "in certain legal systems and, under civil law, in particular, the two concepts are very different.,,175 Interestingly, as will be examined below, the Rome Statute draws the distinction in bath versions of the text. 176 As far as incitement to genocide is concerned, the ICTR unequivocally held in Akayesu that direct and public incitement to genocide do es not require a subsequent act to constitute a crime, thereby construing incitement to genocide as a distinct offence, punishable on its own right. 177 This conclusion was re-affirmed in the cases of Ruggiu l78 and Nahimana. The latter case is of particular interest because it includes a detailed discussion of the prosecutorial standard for the crime of incitement, notably direct and public incitement to genocide, and is likely to be of great precedential value. 179 As noted by McKinnon, "this adjudication is the first since the Streicher and Fritzsche cases at Nuremberg to contront the responsibility of the media under criminal justice principles.,,180 In that case, the ICTR convicted the three accused for their involvement in the genocide through their role as media executives in the Rwandan radio station Radio Milles Collines. 181 In line with its earlier holding in Akayesu, the ICTR held that hate speech or incitement to hatred does not require a subsequent act in order to constitute elements, required for incitement, particularly, incitement to commit genocide (Article 2 (3)(c) of the Statute) which, in this instance, translates incitation into English as "incitement" and no longer "instigation". Sorne people are of that opinion. The Chamber also accepts this interpretation [emphasis added). (Akayesu, supra note 5 at 481). 175 Akayesu, supra note at 5 at para. 481. For instance, referring to article 91 of the Rwandan Penal Code, supra note 68, the Chamber notes, "that the said Article 91 of the Rwandan Penal Code draws a distinction between "instigation" (instigation), on the one hand, as provided for by paragraph 1 of said Article, and "incitation" (incitement), on the other, which is referred to in paragraph 4 of the same Article" (ibid. at para. 534). 176 Rome Statute, supra note 8, Statut du CPI, supra note 174. 177 Akayesu, supra note 5 at para. 552. 178 Ruggiu, supra note 166. Ruggiu, a Belgian joumalist, pIed guilty to the crime of direct and public incitement to commit genocide and crimes against humanity (persecution). The Trial Chamber sentenced him to twelve years of imprisonment on each count and are to be served concurrently. 179 Catherine McKinnon, "Prosecutor v. Nahimana, Barayagwiza & Ngeze," David D. Caron, ed., (2004) 98 A.J.I.L. 323 at 330. 180 Ibid. at 328. 181 Nahimana, supra note 16 at paras. 970-74,1091-94. 45 Chapter II: Prosecuting Incitement at the International Leve! incitement to genocide provided the requisite elements of genocide are present. 182 Referring specifically to the role of causation necessary to make a finding of incitement to hatred as a form of genocide, the Tribunal had the following to say: In considering whether particular expression constitutes a fonn of incitement on which restrictions would be justified, the international jurisprudence does not include any specifie causation requirement linking the expression at issue with the demonstration of a direct effect. 183 Consequently, the Tribunal concluded that there is no need for hatred to be aroused on the part of the audience in order to make a finding of criminal incitement provided there is the requisite mens rea on the part of the inciter coupled with the likelihood that such speech could bring about the desired effect. 184 Although not explicitly stated, it appears logical that such a standard is measured objectively. In particular, the Chamber recalled that "incitement is a crime regardless of whether if has the effect if intends ta have,,,185 finding that it is the "risk of causing genocide," which justifies the imposition of individual criminal responsibility.186 In line with the Nümberg Tribunal in the Streicher case, the ICTR inferred a finding of guilt on the basis of the subsequent events, noting that it "considers it significant that in fact genocide occurred.,,187 While the intended inevitably strengthens a conviction on the charge of incitement to genocide,188 the fact 182 Ibid. at para. 1077. 183 lb id. at para. 1007. 184 Ibid. Conversation with Professor Patrick Healy (12 October, 2004). 185 Ibid. at para. 1029 [emphasis added]. 186 Prosecutor v. Nahimana, Barayagwiza & Ngeze, Case No. ICTR~99-52-T (2003) (International Criminal Tribunal for Rwanda, Trial Chamber "Summary") at para. 98. Interestingly there is sorne divergence in the wording of the actual case and its official case summary. In the actual case the wording is: "In detennining whether communications represent an intent to cause and thereby constitute incitement" and in the summary it is: "in detennining whether communications represent a risk of causing genocide." This divergence is of interest in the sense that the actual case highlights the mens rea component as a detenninative element of incitement, whereas the summary seems to infer such intent, focusing instead on the potential causallink. (ibid.) [Emphasis added]. 187 Nahimana, supra note 16 at para. 1029. 188 Ibid. As noted earlier, the Akayesu Trial Chamber's discussion on unsuccessful incitement was not expanded upon in detail because sufficient evidence of causality could be adduced to make a fmding of guilt. Schabas, "The Road to Genocide", supra note 130 at 161. 46 Chapter II: Proseeuting Incitement at the International Level that no conviction on the basis of unsuccessful incitement has been entered to date, undermines the credibility of the hypothesis that such a finding could in fact be made without this element. Although the ICTR Trial Chamber seems reluctant to create inchoate liability for the crime of incitement other than in the specific case of genocide, the Nahimana case, building on the finding of the Nümberg Tribunal in the Streicher case, appears to stand for a limited recognition of inchoate liability in cases of persecution constituting crimes against humanity. Specifically, the Tribunal held that incitement to hatred could constitute either incitement to genocide or persecution as a form of crime against humanity, although a scenario can be envisaged where hate speech amounts to both. 189 As noted by the Tribunal, given that persecution has a lower threshold requirement than direct and public incitement to genocide, where incitement to genocide has been proved, persecution is subsumed within those acts, provided the communication also meets the requisite standard of a widespread or systematic attack. 190 In this sense, Ruggiu represents the first case in which incitement by way of radio broadcasts was found to constitute 189 See for ex ample Proseeutor v. Semanza (2003), Case No. ICTR-97-20-T (International Criminal Tribunal for Rwanda, Trial Chamber) [Semanza] at paras. 347-50. In Proseeutor v. Kupreskie et al., (2000), Case No. IT-95-16 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II), the elements of the crime of persecution were summarized as "the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaehing the same level ofgravity as the other aets prohibited in Article 5." (ibid. at para. 621) [Kupreskie]. AlI ICTY cases may be found online: United Nations 47 Chapter II: Prosecuting Incitement at the International Leve! persecution as a crime against humanity.191 In Nahimana, the ICTR affinned its previous holding in Ruggiu, finding that the crime of persecution is contingent upon "a gross or blatant denial of a fundamental right reaching the same level of gravit y" as other crimes in the category of crimes against humanity.l92 Interestingly, the discriminatory intent necessary to make a finding of persecution may serve to elevate a crime's level of gravit y and, as a consequence, create a certain hierarchy within the category of crimes against humanity itself.193 As is explicitly noted by the Nahimana Trial Chamber, proof of persecution requires an additional element of the intent to discriminate on racial, religious or political grounds,194 noting that it is evident "that hate speech targeting a population on the basis of ethnicity, or other discriminatory grounds, reaches this level of gravity and constitutes persecution.,,195 In Nahimana, the latter requirement was satisfied by establishing that "the group against which discriminatory attacks were perpetrated could be defined by its political as weIl as ethnic component.,,196 Despite the fact that persecution is committed upon proof of incitement to hatred and discriminatory intent and can be subsumed within the same conduct constituting 191 Ruggiu, supra note 166. See a!so Nahimana, supra note 16 at para. 1072. The ICTR followed the ICTY in Kupreskic, supra 189. In that case, the ICTY summarized the elements that comprise the crime of persecution as follows: "a) those elements required for all crimes against humanity under the Statute, b) a gross or blatant denial of a fundamental right reaching the same level of gravit y as the other acts prohibited under Article 5, c) discrirninatory grounds." (ibid.) 192 Ruggiu, supra note 166 at para. 21 following Kupreskic, ibid. at paras. 619-21 [emphasis addedJ. 193 Further discussion ofthis will be found at Chapter III, section (II)(B). 194 Nahimana, supra note 16 at para. 1071. Note that in article 7, which sets out the e1ements for crimes against humanity in the Rome Statu te, supra note 8, persecution has been expanded to include grounds such as culture and gender. 195 Nahimana, ibid. at para. 1072. 196 Ibid. at para. 1071. 48 Chapter II: Prosecuting Incitement at the International Leve! incitement to genocide,197 the Trial Chamber insists on differentiating the fundamental characteristics ofboth crimes. To this end, it notes: Unlike the crime of incitement, which is defined in terms of intent, the crime of persecution is defined also in terms of impact. Persecution is not a provocation to cause harm. It is itself a harm. Accordingly there need not be a calI to action in communications that contribute to persecution. For the same reason, there need be no link between persecution and acts of violence. 198 While persecution shares genocide' s additional discriminatory intent, it is not considered as grave as genocide, and consequently an actual impact is necessary, the impact being the persecution itself.199 From a purely conceptual perspective, however, such a distinction appears simplistic since the theoretical basis behind characterizing incitement to genocide as inchoate is at least the possible impact a certain communication or speech may have on its target group. As a result, a potentially better way of differentiating the two would be by the stage oftheir 'completion.' In other words, while incitement to genocide may never bring about a subsequent genocide, persecution can be viewed as the completed act of incitement to hatred provided the specific intent is present. Paradoxically, however, as was discussed ab ove, the Tribunal held that hatred does not need to be provoked in the target audience for a finding of incitement to hatred to be made.200 On the basis of the foregoing reasoning, the Court held the respondents guilty of incitement to genocide and crimes against humanity (persecution),201 demonstrating that 197 Ibid. at 1077. Conversation with Professor Patrick Healy (12 October, 2004). 198 Ibid. at para. 1073. 199 See Chapter III, notably section (II)(B), for more on the topic of the relative seriousness of international offences. 200 Nahimana, supra note 16 at para. 1007. 201 Ibid. at para. 1090. 49 Chapter II: Proseeuting Incitement at the International Level the same conduct could justify multiple convictions on account of the fact that the offences charged contain "materially distinct elements not contained in the other.,,202 The recognition that persecution is in sorne sense inchoate in nature appears to demonstrate the ICTR's willingness to entertain, at least to sorne extent, the possibility of circumventing the result requirement, which is generally in place for incitement to crimes against humanity. In other words, the Nahirnana Trial Chamber appears to validate a limited expansion of the Anglo-Saxon position in criminalizing incitement. Such a finding would imply that the CUITent prosecutorial standard for the crime of incitement has two exceptions, firstly, incitement to genocide and secondly, the much more amorphous and undeveloped category of incitement to acts which amount to a crime against humanity, i.e. an act which itself constitutes the harm. 203 Confusingly, however, the ICTR reaffirms the difference between incitement to genocide and incitement to other crimes, inc1uding crimes against humanity, in order to impose a result requirement for the latter category of crimes. As a consequence, the Trial Chamber appears to have effectively c10sed the door before completely opening it on the possibility of broadening inchoate liability to incitement crimes other than direct and public incitement to genocide. Nevertheless, the discussion demonstrates that the ICTR does appear to entertain sorne doubts as to the CUITent ambit prescribed to the prosecutorial standard for incitement crimes. At the very least, it seems to suggest that the 202 In Nahimana, supra note 16, the Trial Chamber explains the importance of this by stating: "[c ]umulative charging is generally permissible, as it is not possible to determine which charges will be proven against an Accused prior to the presentation of the evidence." (ibid. at para. 1089). See also Proseeutor v. Musema (2001), ICTR-96-13-A, (International Criminal Tribunal for Rwanda, Appeals Chamber) at paras. 361-63, following the ICTY in Proseeutor v. DelaUe (2001), 1T-96-21-A, (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber) at paras. 412-13. 203 Conversation with Professor Patrick Healy (10 September, 2004). 50 Chapter II: Prosecuting Incitement at the International Level parameters of the prosecutorial standard for incitement are not as finite as portrayed by earlier jurisprudence emanating from the ICTR. Despite this foregoing inconsistency, Nahimana represents an important case because it may lay the groundwork for a more prolific debate about the respective boundaries between categories of incitement, notably at the ICC. C. The International Criminal Court: Potential for Clarification? i) The Rome Statute Examined a) Criminalizing Incitement under Article 25 Much like its ad hoc predecessors, the Rome Statute has expressly criminalized incitement to genocide as a special intent crime where it "directly and publicly incites others to commit genocide" under article 25(3)(e).204 Although no mention of the requirement for a result is made, the use of the verb "incite" (which is a departure from the Genocide Convention's use of the noun "incitement") appears to emphasize the direct rather than potential effect such words or speech must have on its target audience. Nevertheless, the Commentary on the Rome Statute affirms that this provision is guided by the ICTR's finding in Akayesu and that, as a result, incitement to genocide is inchoate in nature.20S Consequently, article 25, setting out the parameters of individual criminal responsibility, creates an important distinction between subparagraphs (b) to (d), dealing 204 Rome Statute, supra note 8, art. 25(3)(e). However, other than the ad hoc tribunals' statutes, it merges the 'other acts' of genocide (of which incitement fOnDS part) into a general part concemed with criminal participation dealing with aH international crimes. The significance of this structure is that under the Rome Statu te, the secondary offender is responsible for the crime to which the incitement attaches rather than, as in the case of the tribunals' statutes, 'other acts.' Schabas, Genocide in International Law, supra note 9 at 258. 205 Ambos, Commentary on the Rome Statu te, supra note 73 at 487(29). The drafting records themselves simply point to a debate as to the place incitement to genocide should be accorded. Report of the Preparatory Committee on the Establishment ofan International Criminal Court, Volume l, Proceedings of the Preparatory Committee during March -April and August 1996, UN GAOR, 51 st Sess., Supp. No 22, UN Doc. A/51/22 (1996) at 18 (64) [ICC Travaux Préparatoires]. 51 Chapter II: Prosecuting Incitement at the International Level with fonns of complicity, and subparagraph (e), dealing with incitement as a specific fonn of complicity in genocide. As a result, complicity in genocide "breaks with the dependence ofthe act of complicity on the actual crime [ ... ].,,206 Other than the ad hoc tribunals' statutes, the Rome Statute merges the 'other acts' of genocide (of which incitement fonns part) from the substantive definition of genocide into a general part concerned with criminal participation dealing with aIl international crimes.207 The significance of this structure is that under the Rome Statute the secondary offender is responsible for the crime to which the incitement attaches rather than, as in the case of the ad hoc tribunals' statutes, 'other acts.'208 IncidentaIly, such a transposition seems to broaden criminal responsibility for incitement to crimes other than genocide within the Rome Statute. 209 In fact, such a provision was envisioned in the 1996 1.L. C. Drafl Code, albeit explicitly requiring the intended result. The 1.L. C. Drafl Code stipulates in article 2(f): An individual shaH be responsible for a crime set out in articles 17, 18, 19 or 20 if that individual directly participates in planning or conspiring to commit such a crime which in fact occurs or is attempted. 210 Given that no agreement could be reached between members of the Preparatory Commission as to the inclusion of this provision, genocide is currently the only crime to which incitement attaches explicitly in the Rome Statute. 211 The place of incitement within the confines of the Rome Statute is thus at apparent odds both with the position 206 Ambos, ibid. at 487(29). 207 Rome Statu te, supra note 8, art. 25. See also, Schabas, Genocide in International Law, supra note 9 at 258. 208 Schabas, ibid. at 258. 209 Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, International and Comparative Criminal Law Series, (Ardsley: Transnational, Inc. 2002) at 198 [Sadat]. 210 IL.e. Draft Code, supra note 76, art. 2(f). 211 Sadat, supra note 209 at 197-198. 52 Chapter II: Prosecuting Incitement at the International Leve! taken in the ad hoc tribunals' statutes and with the general assumptions underlying all other articles under article 25. With regard to incitement to an offence other than genocide, the Rome Statute appears to be silent. Regrettably, the parameters of such a debate have largely remained undocumented, the result being that it is uncertain on what precise basis this provision was rejected. It appears, however, that the broadening of individual criminal responsibility to incitement to crimes other than genocide was rejected as a general proposition.212 Ostensibly, on the one hand, sorne members of the drafting committee were opposed to the imposition of a result requirement for incitement to genocide, which would have significantly limited the prosecutorial reach of the Court given the high evidentiary hurdles involved?I3 On the other hand, it appears as though the drafters harboured the fear that the broadening of inchoate liability for acts of incitement to crimes other than genocide would infringe upon a person's freedom of expression.214 Such a standpoint is founded on a misconception about the threshold requirements that would presumably be necessary to make proof of a finding of incitement to cnmes against humanity, which will be discussed in Chapter III. b) Sources of Law under Article 21 Given the fact that the ICC has not yet generated any jurisprudence on this point, it remains unclear which approach to incitement the judges at the ICC will ultimately adopt. There are sorne strong indications, however, based on a plain reading of the Rome 212 Per Saland, "International Criminal Law Principles," in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statu te: Issues, Negotiations, Resu/ts (The Hague: Kluwer International, 1999), at 200. 213 As will be noted in Chapter III, section II(A)(i)(a), infra, there are objective means to infer such genocidal intent such that this requirement in its effect does not appear significantly more onerous than the proof ofknowledge for crimes against humanity. 214 ICC Travaux Préparatoires, supra note 205 at 46(203). 53 Chapter II: Prosecuting Incitement at the International Level Statute and the sources of law applicable, that the civil law approach will detennine the prosecutorial standard for incitement. In particular, article 21 of the Rome Statute, setting out the applicable law in hierarchal order, designates the primary place to the Rome Statute and its subsidiary documents.2lS The fact that incitement to crimes other than genocide is absent from the text of the Statute, coupled with the drafters' reluctance to exp and the provision dealing with incitement to genocide to other crimes within the jurisdiction of the Court, may be sorne indication that the latter fonn of incitement is not meant to incur inchoate liability under the parameters of the Rome Statute, at least as a general offence. Ostensibly, such acts of incitement are meant to be subsumed as a fonn of criminal participation in a completed offence (i.e. complicity) and are thus conceptualized as result-oriented instead. The pitfalls of such a characterization, notably as compared to the approach advocated by most common law jurisdictions, have already been addressed in Chapter I. Most important to the characterization of such a crime is the need for a causal nexus between the act of incitement and the ensuing substantive offence. In particular, as is noted by Ambos, incitement is conceivably covered by the 215 Rome Statu te, supra note 8, art. 21. It is noteworthy that the ad hoc tribunals do not explicitly provide for sources of applicable law similar to article 21 of the Rome Statu te. Although a discussion surrounding the scope of article 21 will not be embarked upon here, suffice it to state that is has garnered considerable criticism for removing from the ICC judges "powers inherent in aIl courts" in the interpretation of cases before them. Alain Pellet, "Applicable Law" in Antonio Cassese, Paola Gaeta and John R.W.D. Jones, eds., The Rome Statu te of the International Criminal Court: A Commentary, (Oxford: Oxford University Press, 2002) Volume II [Rome Statute Commentary Il] at 1053. As noted by Pellet: The system of sources to which the Statute refers is extremely complex, sometimes even uncertain, and the order of precedence between the different provisions is equally ambiguous. One may, thus, predict that the judges will interpret the text, at least partially, so as to recover the powers inherent in aIl courts, of which the drafters of the Statue clearly wanted to deprive them. (ibid.) However, as Pellet goes on to say, article 2l(1)(a) appears unclear as to what role ICC precedent will play in the interpretation of cases before it. (ibid. at 1065). 54 Chapter II: Proseeuting Ineitement at the International Level provision dealing with soliciting, ordering and inducing to the commission of a crime as per article 25(3)(b).216 Accordingly, article 25(3)(b) stipulates: a person shaH be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that pers on orders, solicits or induces the commission of such a crime whieh infaet oeeurs or is attempted. 217 The Black's Law Dictionary defines solicitation as "the criminal offence of urging, advising, commanding, or otherwise inciting another to commit a crime.,,218 As noted by the Commentary on the Rome Statu te, "[i]nducing is a kind of umbrella terrn covering soliciting which, in tum, has a stronger and more specific meaning than inducing,,,219 and the French version of the Rome Statute's translation of "induce" into "sollicite ou encourage" illustrates the breadth of this concept.220 Several points must be made at this juncture. While the addition of "attempt" broadens the scope of criminal liability on the part of the inciter, it nevertheless requires the induced to at least have attempted the commission of the substantive crime in question and the applicable standard requires that the act not be too remote. SpecificaIly, "attempt" is defined as "an overt act that is done with the intent to commit a crime but that falls short of completing that crime.,,221 Consequently, where Person A induces Person B to commit a crime against humanity and Person B in fact attempts but/ails to commit it, Person A's acts can attract criminalliability where proof of such an attempt can be made beyond a reasonable doubt. While significant to the expansion of criminal liability with regard to incitement, 216 Ambos, Commentary on the Rome Statu te, supra note 73 at 486(26). 217 Rome Statute, supra note 8, art. 25(3)(b). Ambos, ibid. at 491(38). The analysis of paragraph 3, subparagraphs (b) and (c), shows that it is hardly possible to delimitate the different forms of complicity mentioned in these subparagraphs. Thus, it may be sufficient and more reasonable to limit a mIe of complicity to inducement and aiding and abetting. It is submitted that these forms of complicity coyer any conduct which should entai! criminal responsibility. (ibid.) th 218 Blaek's Law Dietionary, 7 ed., s. v. "solicitation". 219 Ambos, Commentary on the Rome Statu te, supra note 73 at 481 (15). 220 Statut du CPI, supra note 174, art. 25. th 221 Blaek's Law Dietionary, 7 ed., s. v. "attempt". 55 Chapter II: Prosecuting Incitement at the International Level such a provision does not cover a case of unsuccessful inducement in which Person B did not act upon Person A's encouragement. From a linguistic point ofview, it is noteworthy that the drafters chose to differentiate conduct comprising incitement to genocide and incitement to other international offences by employing different terms. That is, instead of labeling them both "incitement," the drafters chose to employ the terms "soliciting" and "inducing" to describe conduct constituting incitement to crimes other than genocide. As a result, the linguistic specifications of article 25 of the Rome Statute (notably as between (b) and (e» highlight different legal approaches to incitement on the basis of the substantive crime to which it attaches. Although the Rome Statute's conceptualization of incitement appears congruent with the dominant view reflected in international jurisprudence, its interplay with subsequent sources of applicable law, notably article 21 (1)( c), which explicitly draws on national legal systems, may pose significant complexities in the organization of international legal norms into a coherent body of international criminallaw. The second source of applicable law in the interpretation of a case before the ICC as per article 21 (1 )(b) is "where appropriate, applicable treaties and the principles and rules of international law [ ... ].,,222 How important this category will become to the interpretation of cases before the ICC is questionable since: It is difficult to imagine [ ... ] a situation in which the Court would have to apply a treaty other than its Statute, unless two or more States agreed to accord it sorne specifie jurisdiction or to require the application of particular principles. In any case, it is most unlikely, given that the Court has only been granted limited subject-matter jurisdiction, that it would be obliged, or even able, to apply such agreements. 223 222 Rome Statu te, supra note 8, art. 2l(b) 223 Pellet, Rome Statu te Commentary IL supra note 215 at 1069. 56 Chapter II: Prosecuting Incitement at the International Level Where the foregoing sources of law "fail," to use the precise words of the Statute, the third source of law is applicable as per article 21 (1)( c). 224 It comprises the "general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime.,,225 The fact that the provision does not make reference to national courts as such is presumably illustrative of the view that "it is not necessary to make a systematic comparison of aIl national legal systems, but only to ensure, by 'polling,' that the norms in question are effectively found in the 'principal legal systems of the world. ",226 Rather, as argued by Pellet, this provision conceivably requires the Court to interpret the laws and norms emanating from the main legal systems of the world more generally, namely the civil law, the common law and Islamic law.227 Accordingly, the discrepancy between the civil law and common law traditions in their respective criminalization of incitement is exasperated at the international level. Consequently, the possibility that the Court's decision must be informed by extrapolating from contradictory national systems' interpretation of incitement, as exemplified by the divergence in the civil and common law approaches, renders the case for clarification of the standard at the ICC very pertinent. The practical implications of conflicting standards between national and international law norms was to sorne extent addressed by the Chamber of the ICTY in Furundzija,228 although its finding appears to merely re-affirm 224 Rome Statute, supra note 8, art. 21(l)(c) 225 Ibid., art. 21(l)(c). 226 Pellet, Rome Statute Commentary II, supra note 215 at 1073. 227 Ibid. at 1074. 228 Prosecutor v. Furundzija (1998), Case No. IT-95-17/1 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II) [Furundzija). The ensuing section (pp. 57-59) draws on a paper entitled "Complementarity: Justice without Force?", supra note 2 at 18-19. See also Cassese, International Criminal Law. supra note 4 at 31. 57 Chapter II: Prosecuting Incitement at the International Level the complexity of their respective relationship. In particular, drawing on standards common to the major legal systems of the world,229 the ICTY equated forced oral sexual contact with rape, even though such conduct, while criminal, 'merely' constituted sexual assault in the accused's own legal system.230 The Trial Chamber made the following statement: A major discrepancy may, however, be discerned in the criminalization of forced oral penetration: sorne States treat it as sexual assault, while it is categorized as rape in other States. Faced with this lack of uniformity, it faIls to the Trial Chamber to establish whether an appropriate solution can be reached by resorting to the general princip les of international criminal law or, if such princip les are of no avail, to the general principles of internationallaw. 231 The practical effect of this fin ding is that oral sexual acts were placed on a higher scale of gravit y, incidentally increasing the level of stigmatization with respect to the accused's acts. The foregoing attempt to reconcile nationallaws in order to extrapolate an international criminal law rule is illustrative of an increased awareness about the historical inadequacy in the prosecution of gender-based crimes. Nevertheless, this aspect of the case uncovers intricate legal problems that arise in the co-existence of different legal sources in the adjudication of a case before international criminal bodies. Such complexities must be viewed against the backdrop of fundamental notions of elementary criminal law, which require a correlation between the actus reus and the mens rea to make a finding of guilt. Cognizant of such basic notions, the Furundzija Trial Chamber The Tribunal- it would seem, somewhat contradictorily - held that at this stage it was appropriate to look for "general principles of international criminal law or, if such principles are of no avail, to the general principles of international law" (para. 182). It then applied the 'general principle of respect for hum an dignity' both as a principle underpinning international humanitarian law and human rights law, and as a principle permeating the whole body of international law (para. 183). It also applied the general principle nullum crimen sine lege (para. 184), probably as a general principle of criminallaw (ibid.) 229 Furundzija, ibid. at paras. 180ff. 230 Ibid. at 184 [emphasis added). The Trial Chamber notes, "As both these categories of acts are criminalised in international law, the distinction between them is one that is prirnarily material for the purposes of sentencing." (ibid at para 186). 231 Ibid. atpara. 182. 58 Chapter II: Prosecuting Incitement at the International Level held that the increase in stigmatization surrounding rape would not detrimentally affect the accused since the duration of the sentence would be equal for both crimes. 232 The landmark Akayesu case, which deals specifically with the prosecution of incitement to genocide, provides another illustration of the complexities that may be faced by the ICC, since, as was seen in Chapter I, the ICTR made use of sorne problematic inferences to arrive at a 'harmonization' between the differing approaches of the two main legal traditions. As noted by the President of the ICC himself, one of the Court' s biggest challenges is the fact that there are aspects "in international criminal law that are substantially different from the national situation.,,233 This is particularly so for a range of reasons, "not least the variation and possible inconsistency of relevant domestic norms with regard to the same international situation.,,234 Although the end result appears to better reflect an understanding about the true nature of the crime of incitement to genocide, namely that it is punishable irrespective of whether it results in a 'greater' crime, ostensibly such reasoning sets a dangerous precedent in the practical realization of the complementarity provisions at the ICC. In the Erdemovic case before the ICTY, Judge Cassese addressed "the extent to which an international criminal court may or should draw upon national law concepts and transpose these concepts into international criminal proceedings. ,,235 Based on the intricate relationship between national and 232 Ibid. at para. 184. The Trial Chamber noted: So long as an accused, who is convicted of rape for acts of forcible oral penetration, is sentenced on the factual basis of coercive oral sex - and sentenced in accordance with the sentencing practice in the fonner Yugoslavia for such crimes, pursuant to Article 24 of the Statute and Rule 10 1 of the Rules - then he is not adversely affected by the categorisation offorced oral sex as rape rather than as sexual assault. (ibid.). 233 Philippe Kirsch, John Tait Memorial Lecture in Law and Public Policy delivered at the National Gallery of Canada, Ottawa, 7 October, 2003, online: 59 Chapter Il: Prosecuting Incitement at the International Level international law nonns, he argues that "legal constructs and tenns of art upheld in national law should not be automatically applied at the international 1evel' , [ ... ] and "mechanically imported into international criminal proceedings.,,236 It is relevant to this discussion that Judge Cassese bases his conclusion in part on the relationship between common and civillaw nonns in the composition of international criminal law. He argues that: This combination or amalgamation is unique and begets a legallogic that is qualitatively different from that of each of the two national criminal systems: the philosophy berund international trials is markedly at variance with that underpinning each of those national systems. 237 Given the foregoing, it is not clear exactly how and under what precise circumstances article 21(1)(c) will be applied in the detennination of a case before the ICC. While the precise parameters surrounding the interplay between national and international law before international criminal tribunals is beyond the scope of this discussion, the foregoing highlights the conceptual difficulties that accompany its implementation. OveraIl, it appears likely that ICC judges will follow the civil law approach to incitement under aIl sources of law designated by article 21, although it is not certain how stringent the test for a causal nexus will be. In fact, despite the foregoing difficulty to reconcile two diametrically opposing views on individual criminal responsibility, a clear stance from the ICC may nevertheless facilitate a consistent approach to incitement in the body of international jurisprudence. Although the jurisdictional framework based on the principle of complementarity is founded on valid theoretical and practical bases, sorne of which will be touched upon below, it incidentally exasperates the complex relationship 236 Ibid., Separate and Dissenting Opinion of Judge Cassese. 237 Ibid at para. 4. 60 Chapter II: Prosecuting Incitement at the International Level between national and international nonns in achieving a consistent body of international criminal law. As such, the theoretical structure underlying the complementarity principle itself is not subject to inquiry under this discussion, but rather its practical repercussions on valid cIaims of fundamental differences between national legal systems, laws and nonns in the criminalization of international crimes. Although an evaluation of the overall success in implementing the complementarity regime is beyond the scope of this discussion, a basic overview of sorne practical consequences arising from this jurisdictional construct will facilitate an understanding of the intricacies involved in the prosecution of incitement. ii) Incitement against the Backdrop of the Complementarity Principle a) Complementarity in Practice The complementarity principle embodied in the Rome Statute seeks to achieve a "delicate balance" between national and internationallaw in its fight against impunity for the commission of heinous international crimes.238 This principle is backed both by the desire to protect state sovereignty and the finn belief that national legal systems provide the best fora to prosecute crimes of an international caliber.239 However, it has been argued that "[t]he concept of the complementary jurisdiction of the national courts is more than a mere patronizing nod to national sovereignty in the face of an otherwise relentless march towards internationalism.,,24o 238 John T. Holmes, "The Principle of Complementarity" in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statu te: Issues, Negotiations, Results (The Hague: Kluwer International, 1999) 41 at 74 [Ho/mes]. The following sections (pp. 61-63) are substantially informed by a previous paper entitled "Complementarity: Justice without Force?" supra note 2 at 1-3. 239 Holmes, ibid. at 74. See also, Cassese, International Criminal Law, supra note at 4 at 351. 240 "Domesticating International Criminal Law: Germany's Proposed Volkerstrafgesetzbuch (International Law Criminal Code)" (2001) 2 German Law Journal (Public Law) 10. See also generally the German Code ofInternational Crimes, supra note 153. 61 Chapter II: Prosecuting Incitement at the International Level Referring to the complementarity principle in its preamble, the Rome Statute affirms "that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.,,241 Articles 1 and 17, building on this view, further set out the parameters of this jurisdictional construct. Most elaborate is article 17, which lays out precise situations in which the Court's complementarity regime is prompted. It sets out the concepts of "unwilling" and "unable," which provide the yardstick for a national court's capacity to hear a case. Although neither the preamble nor article 17 defines complementarity explicitly, Newton argues that: the plain text of Article 1 compels the conclusion that the International Criminal Court is intended to supplement the foundation of domestic punishment of international violations, rather than supplant domestic enforcement of international norms.242 This construct sets the ICC apart from its ad hoc forerunners - the ICTR and ICTY - whose jurisdictional frameworks are based on the notion of primacy. Essentially, the ad hoc criminal tribunals have inherent jurisdiction over a case without having to refer it to national courts first. 243 Given that the ICC only hears a case upon proof that a national court is "unwilling" or "unable", the principle ofprimacy appears to expedite the prosecution of a case. However, as pointed out by Newton, the disinc1ination by national tribunals to surrender their jurisdiction often results in the ad hoc tribunals' "total 241 Rome Statute, supra note 8, Preamble, at para. 4. 242 Michael A. Newton, "Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court" (2001) 167 Military Law Review 20 at 26 [emphasis added]. [Newton]. See Rome Statute, supra note 8, art. 1. "An International Court ("the Court") is herebyestablished. It shaH be a permanent institution and shaH have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shaH be complementary to national criminal jurisdictions. "(ibid.) 243 William Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2001) at 67. [Introduction to the International Criminal Court]. 62 Chapter II: Prosecuting Incitement at the International Level defiance.,,244 As persuasively argued by Newton, there is "to date no clear evidence that either primacy or complementarity claim inherent functional superiority as a core organizing principal. ,,245 He notes: "[ c ]omplementarity is in theory an impartial, reliable, and de-politicized process for identifying the cases of international concern, and hence international jurisdiction.,,246 Consequently, in terms of the outcome, there may not be that great a variance between the principles of primacy and complementarity at a general level. 247 That is, the fact that article 17 is cast negatively, employing the term "inadmissibility," may be a pertinent illustration of the subordinate role that is bestowed on the Court in its interplay with national courts. However, any comparative analysis between both jurisdictional principles must also consider particularities in the Rome Statute's conception of complementarity. b) DifferentiaI Prosecutorial Standards for the Crime of Incitement As was indicated earlier, the interplay between national and international standards in the criminalization of international offences challenges the successful implementation of the complementarity regime. While the crimes within the jurisdiction of the Court (genocide, crimes against humanity, war crimes, and aggression) are reflective of norms set out in international treaties, conventions and international customary law, the Rome Statute has reformulated many of their basic e1ements in an attempt to more adequately mirror their development in the existing and ever-evolving body of international customary law. In sorne cases, as is the situation with gender-based 244 Newton, supra note 242 at 43. 245 Ibid. 246 Ibid. at 73. 247 Ibid. at 44. 63 Chapter II: Prosecuting Incitement at the International Level offences, the Rome Statute has even criminalized behaviour for the first time.248 Paradoxically, however, it is precisely its progressiveness, viewed against the backdrop of the complementarity regime, which may further broaden the disparity among prosecutorial standards between the ICC and national courts. Although the ICC is frequently viewed as a revolutionary step in the overall development of international criminal law, the complementarity principle engenders great criticism for upholding differential prosecutorial standards for the same crimes rather than standardizing them?49 The true challenge lies in the discrepancy between prosecutorial standards of countries, which are, for all intents and purposes, willing and able to hear a case. While member states are under an obligation to incorporate the Rome Statute' s core crimes into their domestic legislation for the complementarity regime to function effectively,250 the fact that ancillary offences (including incitement) are often not explicitly listed signifies that these are subsumed in provisions dealing with participation in criminal offences under nationallaw. For instance, Germany's Code of International Crimes does not explicitly list incitement in its prohibition of genocide, such that incitement to genocide is relegated to the purview of specific incitement offences in its regular Penal Code?5! As Chapter 1 has sought to demonstrate, however, incitement to crimes other than genocide is subject to different prosecutorial standards depending on the legal system in which it is prosecuted. Practically speaking, should the ICC judges adhere to the civil law theory of 248 While the Rome Statute's stance towards gender-based offences differs greatly from the statutes of the ad hoc criminal tribunals in that the latter make only minimal reference to gender-based offences, their jurisprudence greatly contributed to the advancement of gender-justice and must be attributed for providing the blue-print for the progressive gender-based provision in the Rome Statu te. See in particular, Rome Statute, supra note 8 at arts. 7(g) and 8(2)(e)(vi). 249 Human Rights Watch, Making the International Criminal Court Work: A Handbookfor Implementing the Rome Statu te (2001) Vol. 13, No. 4(G) at 15. 250 See Amnesty International, Guidelines for Effective Implementation of the Rome Statute, AI Index: IOR 40/013/2004 (1 September, 2004). 251 This is similar for France and many other nations. 64 Chapter II: Prosecuting Incitement at the International Level incitement, a country which is willing and able to prosecute an international crime can nonetheless decide a case by applying the common law approach. Termed differently, a person accused of incitement in certain common law jurisdictions will be subject to a higher risk of criminal liability than someone accused of the same crime at the ICC. For instance, as was discussed in Chapter l, incitement as a form of participation (counseling) in crimes against humanity or war crimes could arguably engender criminal liability under section 464 of the Canadian Criminal Code irrespective of whether the substantive offence in fact occurred. Conversely, in many civil law jurisdictions, such as France for instance, inchoate liability for unsuccessful incitement to crimes other than genocide is not envisioned as a general proposition. In the latter context, the only possible way to construe liability per se with regard to such acts of incitement would be on the basis of a particular provision in national legislation that would permit prosecution without the resulting unlawful act.252 For instance, as noted in Chapter l, France's Code pénal appears to envision the prosecution of unsuccessful incitement, which incites to an explicitly stated unlawful act under article 24 as an exception to the general rule that incitement must procure subsequent intended results in order to be criminal.253 While Canada's Criminal Code provides for a general offence, the prosecution of incitement to crimes other than genocide under section 464 remains largely hypothetical to date since it has never been used to prosecute genocide or crimes against humanity.254 As a result, there may not be a great discrepancy in outcome to date. 252 The way that crimes against humanity and war crimes could be construed in the Rome Statu te, supra note 8, would only be a natural expansion of these exceptional mIes, drawing on the same criteria. 253 Arts. 23 & 24 C. pén. 254 Conversation with Professor Patrick Healy (5 November, 2004). 65 Chapter II: Prosecuting Incitement at the International Leve! Given the foregoing inconsistency in prosecutorial standards for incitement at the national level, the ICC will face a dilemma right from the outset. That is, whatever approach the ICC chooses to adopt, its decision, while potentially harmonizing international jurisprudence on the matter, will not resolve the incongruencies outside the parameters of the Court' s jurisdiction. The fact that the ICC relegates the prosecution of international crimes to national courts in the majority of cases has the deleterious effect of creating among it and those national courts, which differ in their approach to incitement, a great convergence. In addressing this problem generally, Schense and Piragoff make the following statement: It is to be expected that the International Criminal Court will respect a certain margin of appreciation in these different approaches in applying the provisions of complementarity. Where aState elects to pursue an investigation or a prosecution in lieu of the ICC, under Article 17 of the Rome Statute, the Court will examine whether aState is willing or genuinely able to carry out the task. However, it is widely expected that the Court will show due deference to national judicial systems, unless there is a clear sign that national proceedings are intended to shield an individual from criminal responsibility or that there has been an unjustified delay inconsistent with an intent to bring that individual to justice. Given this framework, il is unlikely that even fondamental difJerences in the approach of States to criminal justice will trigger the Court 's right to take responsibility for a case. 255 ln its attempt to respect state sovereignty and embrace differences, the ICC incidentally appears to condone fundamental disparities underlying the theoretical framework of different legal traditions. Indeed, Schabas notes that the ICC and national forums "function in opposition and to sorne extent hostility with respect to each other.,,256 The practical result is, as was noted above, that a person accused of the same crime in two different legal systems may be subject to a wholly different outcome. While incitement is not the only crime which exposes a great divide between nationallegal systems, and subsequently a great challenge to the effective functioning of 255 Jennifer Schense & Donald K. Piragoft; National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries (Berlin: BWV, 2003) at 245 [emphasis addedJ. 256 Schabas, Introduction to the International Criminal Court, supra note 243 at 67 [emphasis addedJ. 66 Chapter JI: Prosecuting Incitement at the International Level the complementarity regime, it is unique in the sense that its criminalization is contingent on a diametrically opposite understanding of its requisite definitional elements. For instance, while the Rome Statute do es not require a torturer to be from or connected with 257 the State - therefore better reflecting a growing recognition that acts constituting torture are often committed by belligerents in the context of internaI and international arrned conflicts - many national legal systems still ding to a traditional definition of torture as set out in the Convention against Torture and Other Cruel, lnhuman and Degrading Treatment or Punishment. 258 Although the ICC definition is broader, catching a wider range of perpetrators within its arnbit than at the national level, its definition is built on a certain state-centric understanding of torture and has naturally evolved therefrom. Essentially while there is discrepancy in the elements of torture between the ICC and national legal systems, national legal systems' definitions of torture may eventually result in a logical progression of international law norrns, a process which is most pertinently exemplified by the progressive provisions in the Rome Statute. 259 257 Article 7(2)(e) of the Rome Statute, supra note 8, defines torture as: " [t]he intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shaH not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions" [emphasis added]. The foHowing section (pp. 67-68) draws on a previous paper "Complementarity: Justice without Force?", supra note 2 at 16-19. 258 G.A. res. 46, U.N. GAOR, 30th Session, Supp. No. 51, at 197,23 U.N. Doc. A/39/51, I.L.M. 1027 (1984), as modified, 241.L.M. 535 (1985) [Torture Convention]. Article 1 defines torture as: [a]n act by which severe pain or suffering, whether physical or mental, is intentionaIly inflicted on a person for such purposes as obtaining from him or a third person infonnation or confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or sujJering is inflicted by or at the instigation ofor with the consent or acquiescence of a public official or other person acting in an official capacity. It does not inc1ude pain or suffering arising only from, inherent in or incidental to, lawful sanctions (ibid.). [Emphasis added]. As noted by Burgers and Danelius, state-sponsored torture was incorporated into the Torture Convention after an increased employment oftorturous methods by States against their own citizens during the 20th century. J. Herman Burgers & Hans Danelius, The United Nations Convention against Torture - A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (The Hague: K1uwer Academic, 1998) at 112. 259While regrettable, it is clear that differential standards due to a national system's inadequate characterization of certain international crimes should not serve to discredit the complementarity regime; 67 Chapter II: Prosecuting Incitement at the International Leve! Conversely, the debate surrounding the constitutive elements of incitement in the civil law and common law traditions renders the harmonization into a uniform standard challenging, if not entirely inconceivable. While an expansive inquiry into the parameters of the complementarity regime has not been embarked upon as such, the aforementioned section has sought to highlight sorne concerns regarding this construct, which, if disregarded, will endanger the achievement of the Court's ambitious objectives as a whole. Specifically, it has sought to highlight the fact that the overarching practical effect of the complementarity regime, particularly as far as the criminalization of incitement is concerned, promulgates a prosecutorial standard based on notions of 'selective' justice. In light of the growing interdependence between national and international criminal law against the backdrop of the ICC's jurisdictional arrangement, the question whether the intended result should comprise an element of incitement will become increasingly imperative. Consequently, the debate surrounding the crime of incitement may fuel critics of the Court to question its attempt to create a delicate balance between national and international courts, and ultimately, its overall efficacy. On the basis of the foregoing, the complementarity regime shall serve as the "decisive factor in either preventing or enhancing the concept of permanent supranational justice that coexists with state sovereignty in the interests of international peace and security.,,260 rather mechanisms for implementation of the Rome Statute and its subsidiary documents at the national level must be enhanced. 260 Newton, supra note 242 at 29. 68 Chapter Il: Prosecuting Incitemenl al the International Level D. Conclusion While there is consensus based on international conventions, notably the Genocide Convention, and international case law, that inchoate liability attaches to incitement to genocide where the requisite intent can be proved, incitement to other international crimes is symptomatic of a great divide between two disparate notions of criminal justice. This chapter has sought to demonstrate that the determination of an international prosecutorial standard for the crime of incitement is preponderantly based on the Roman-Continental conception of incitement, although there appears to be at least the beginning of a debate within international criminal bodies challenging the parameters of such a standard, as illustrated by the recent ICTR holding in Nahimana. In examining the CUITent prosecutorial standard for incitement to crimes other than genocide, this Chapter has focused on the Rome Statute, which is simultaneously the site of great innovation and inconsistency. Specifically, an attempt was made to expose sorne rather significant conceptual and practical hurdles in the prosecution of incitement at the ICC, a reality which is further aggravated where the complementarity regime is triggered. A further examination of the future of incitement prosecutions shall be undertaken in Chapter III. Specifically, the following Chapter will question the boundaries that have been prescribed to the CUITent understanding of different categories of incitement, with the aim of deconstructing basic assumptions underlying their inception. This, in turn, will facilitate an argument in favour of reconceptualizing incitement within the parameters of the Rome Statute. 69 Chapter III - Thearetical Appraaches ta the Crimina/izatian afIncitement CHAPTER III: THEORETICAL APPROACHES TO THE CRIMINALIZATION OF INCITEMENT 1. The Quest for a Just Standard As the previous two chapters have demonstrated, the result requirement lies at the heart of a divisive debate between the civil and common law traditions in their criminalization of incitement, although, as been demonstrated in Chapter l, in practice there are great variations between systems. While both the Roman-Continental and Anglo-Saxon legal traditions accept the proposition that incitement can attach to crimes other than genocide, divergence lies in the importance bestowed on results to make such a finding. What appears to be a slight discrepancy in practice has tremendous repercussions on the scope of liability of the accused and the prosecution of incitement as a whole. The practical effects of each standard have been addressed above, both on their own and in relation to the work of international criminal tribunals - notably the ICC. This Chapter, in turn, seeks to examine the theoretical underpinnings of each approach in an attempt to better evaluate their underlying rationales and their respective potential in shaping the future of international criminallaw. As we have seen in Chapter l, essentially the challenge underlying the common and civil law traditions is that their approaches are informed by two conflicting understandings of justice. The civil law deems that criminal responsibility is only justified where the crime is in lact completed. Exceptionally, in the case of genocide, which is often hailed as the "crime of crimes,,,261 many civil law nations have bestowed inchoate liability on the incitement thereto. Further, and more specifically to the crime of incitement itself, the civillaw appears to place more emphasis on the physical component 261 Akayesu, supra note 5 at para. 16. 70 Chapter III - Theoretical Approaches to the Criminalization ofIncitement of the crime, validating the culpable mind only upon proof of the substantive offence. Incitement poses sorne particular problems in this regard because the mens rea and actus reus components are united in one person and the act is thus, for the purposes of basic criminal law, considered a completed offence.262 Another way of looking at it is that "[ t ]he actual wrongdoing is not lessened by the absence of the intended result, since the intent is equally criminal.,,263 The civil law's insistence that incitement procure the substantive offence incited to signifies at least a dual actus reus requirement, one on the part of each the inciter and the incited. Consequently, requiring a causal nexus relies on the completion of a second crime, the substantive crime incited to, rendering the bar so high that it leaves many in citers unpunished. As noted by Wilson in a general context, but equally as pertinent to this particular discussion, "this account ignores how the mental element in crime may actually serve to constitute the wrongdoing of which the defendant stands accused, rather than simply serve as a filtering or grading mechanism.,,264 Accordingly, drawing on both legal systems to prosecute incitement propounds a hierarchical scale of 'gravity' between international crimes, which are serious by dejinition. As we shall later see, it is not the abstract idea of a hierarchy as much as the boundary ascribed to it in the concrete setting of incitement prosecutions, which is under scrutiny here. 262 William Wilson, Central Issues in Criminal Theory (Oxford: Hart, 2002) at 264 [Wilson]. While the actus reus and mens rea compose different elements of a crime, a basic principle of criminal law is embodied in the maxim, actus non Jacit reum nisi mens si! rea, which roughly translates into the notion that an overt act must be accompanied by the correlative mens rea to attract criminal Iiability. This combination of elements is traditionally summed up by the Latin maxim which is usually translated as 'an act is not criminal in the absence of a guilty mind. (ibid.). 263 Bjôm Burkhardt, "Is there a Rational Justification for Punishing an Accomplished Crime More Severely than an Attempted Crime?" [1986] B.Y.D.L. Rev. 553 at 554. [Burkhardt]. 264 Wilson, supra note 262 at 266. Extract from a general discussion about the relative interplay between the mens rea and actus reus components of a crime. 71 Chapter III - Theoretical Approaches to the Criminalization oflncitement Conversely, the common law bases its argument on the idea that it is precisely the possibility of the crime' s completion, which warrants the imposition of inchoate liability to incitement even where the substantive crime was in fact never consummated. As such, the common law view is that while incitement is a crime intended to bring about another significantly graver offence, that mens rea alone, and its unison with the actus reus in the inciter, satisfies the elements of a completed offence. The view is that the mere break in the chain of causation in the commission of the substantive crime should not mitigate the intent of the perpetrator. As such, the common law tradition recognizes the importance of incitement in its own right rather than merely as a prerequisite to the substantive crime in question. The foregoing discussion raises the delicate and difficult question whether, and on what basis, a would-be Hitler should be raised to the same level of criminality as a Hitler. What justifies the imposition of liability for horrific international crimes which were never in fact carried out and which never harmed anyone? Conversely, what justifies not imposing criminalliability especially when such grave international crimes endanger the very security of humankind? Given that international criminal law draws on both legal approaches, depending on the gravit y of the crime involved, tentative answers to these complex questions require an analysis of the theoretical justifications underlying the characterization of the substantive crimes themselves. In this context, the elements of genocide must be examined and contrasted against those of other international crimes in an attempt to understand the rationales underlying the differential treatment of incitement 72 Chapter III - Theoretical Approaches to the Crimina/ization ofIncitement in the international fora. 265 The relative seriousness of international crimes has spuITed an arduous debate, notably as between crimes against humanity and war crimes, although this debate has been limited to specific questions regarding sentencing practices.266 Consequently, the basic contours of this debate must be explored in order to illuminate the CUITent discrepancy in the prosecutorial standards for incitement. Il. The Scope of International Criminal Responsibility A. Elements of International Crimes i) Genocide: the Crime of Crimes As was noted in Chapters 1 and II, genocide is considered the gravest international crime because of its premeditative character, which seeks to substantially wipe out the whole or part of a group on the basis of specific criteria. 267 Relying on the basis of the gravit y of the crime, the Akayesu Trial Chamber justified bestowing inchoate liability on incitement to genocide. It held: the fact that such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to pro duce results, warrants that they be punished as an exceptional measure. The Chamber holds that genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator.268 265 Micaela Frulli, "Are Crimes against Humanity More Serious than War Crimes" (2001) 12(2) E.J.I.L., 329. As noted by Frulli, the determination of the relative seriousness of international crimes has concrete consequences and is "crucial for the application ofpenalties." (ibid. at 330). [Frulli]. 266 Ibid. at 331. One prominent example of this debate is the case of Erdemovic before the ICTY Appeals Chamber, supra note 235. It is to note that the author of this text has adopted Frulli's use of the term "relative seriousness", (ibid. at 229) not as a measurement unto itself but as a yardstick by which to measure one crime's seriousness against that of another. While this may appear obvious, linguistically speaking, this Chapter demonstrates the complexities underlying such a standard. 267 Genocide Convention, supra note 3, art. II. 268 Akayesu, supra note 5 at para 562. 73 Chapter III - Theoretical Approaches to the Crimina/ization ofIncitement Indeed intent is a decisive element in the characterization of a crime as genocide and incitement thereto.269 That is, the I.L.C Draft Code Commentary depicts specific intent as "the distinguishing characteristic of this particular crime under international law.'mo Consequently, any discussion surrounding the elements of genocide must necessarily encompass an analysis of the mens rea component. a) Specifie vs. Generallntent ln Akayesu, the ICTR held that aside from a general intent which "lies in the intent to directly prompt or provoke another to commit genocide,,,271 there must be a specific intent (do/us speciales) to destroy in whole or in part a protected group as set out in article II of the Genocide Convention?72 Currently, this form of specific intent is 269 Schabas, "Groups Protected by the Genocide Convention: Conflicting Interpretations from the International Criminal Tribunal for Rwanda" 6 ILSA J. Int'l & Comp. L. 375. As noted in Chapter 1 above, a person inciting another to the commission of genocide must himself possess such specific intent. As held by the Rwanda Tribunal in the Kambanda case, "[t]he crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent "to destroy in whole or in part, a national, ethnic, racial or religious group as such." (supra note 14 at para. 16). In "Genocide, Hs Particular Intent to Destroy in Whole or in Part the Group as Such" (2001) 14 Leiden Journal of International Law 399 at 404 ["Genocide, Hs Particular Intent to Destroy"] Otto Triffterer describes it as a "subjective, additional particular element of genocide" which is imposed above and beyond general intent. As he notes, "it is the 'intent to destroy [ ... ]' that shapes the crime of genocide and differentiates this crime, for instance, from an "ordinary" killing. It is the intent to destroy that makes the perpetrator so dangerous and the expected harm so tantamount, compared, for instance, with a mere murder, even mass murder." (ibid.) 270 I.L.c. Draft Code, supra note 76 at 17(5). 271 Akayesu, supra note 5 at para. 560. 272 Ibid. Article II of the Genocide Convention, supra note 3, stipulates: In the present Convention, genocide means any of he following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) killing members of the group b) causing serious bodily or mental harm to members of the group c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part d) Imposing measures intended to prevent births within the group e) Forcibly transferring children of the group to another group. As noted by Cassese, "it follows from this description of the specific mens rea requirement in the case of genocide that other categories of mental element such as negligence, recklessness (or dolus eventualis) are excluded." "Genocide", Chapter 11.1, in Antonio Cassese, Paola Gaeta & John R.W.D. Jones, eds., The Rome Statute ofthe International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) at 338. [Rome Statu te Commentary 1] Cassese, International Criminal Law, supra note 4 at 106. As Cassese points out, while no specific number of victims is required for an act to constitute genocide, there 74 Chapter III - Theoretical Approaches to the Criminalization ofIncitement attached to the crime of genocide only.273 Despite slightly different terminology, namely "specifie intent in the common law and dol spécial or "special intent" in the civillaw, the concepts are well-known in both legal systems and are generally considered synonymous.274 Essentially, special intent crimes distinguish themselves from general intent crimes, the latter which only require the intent that generally accompanies performance of the criminal act rather than an ulterior purpose above and beyond that. In both the common and civil law systems, specific intent is a constitutive element of the offence, requiring that there be clear intent to see the offence achieved.275 The dual mens rea construct necessary for genocide is typically imposed on certain crimes which are deemed particularly dangerous precisely because of this "additional - and therefore particular - intent.,,276 The imposition of specific intent has the practical effect of criminalizing an act per se, without the requisite need for a result. As noted by Triffterer, "[b]y choosing this type of structure the legislator aims at preventing violations of legally protected values as early as possible, practically before a (greater) damage may occur ... ,,277 The difficulty with special intent, as noted by the Akayesu Trial Chamber, is that the mental element is "difficult, even impossible to determine" in the context of must at least be more than one member of the protected group, as "members" in the wording of the Genocide Convention suggests. It is important to note that the attack against specifie persons can constitute genocide when such an attack is on the basis of those persons' association with a particular group. As noted by the Israeli Supreme Court "a person may also be found guilty of an offence which in fact he committed against specifie persons, if the offence against those persons was committed as a result of an intent to harm the group, and the act committed by the offender against those persons was a kind of 'part performance' of his willful intent against the whole group, be it the Jewish people or any civilian population." Pal (1952) 6 PD 489, 502 [(1951) 18 ILR 542]. Triffierer makes it clear that there is the actus reus and the corresponding mens rea as weIl as an additional specifie intent. Consequently, there are two 'intents,' each of which must be proved beyond a reasonable doubt "Genocide, Its Particular Intent to Destroy", supra note 269 at 401. 273 As was noted earlier, while genocide is the only crime which requires "specifie intent to destroy", the crime of persecution also requires and additional or specifie intent to discriminate. 274 Schabas, Genocide in International Law, supra note 9 at 217. 275 Akayesu, supra note 5 at para. 516. 276 Triffierer, "Genocide, Its Particular Intent", supra note 269 at 402. 277 Ibid. at 402. 75 Chapter III - Theoretical Approaches to the Criminalization ofIncitement genocide, especially in the absence of a confession.278 Consequently, delineating a workable standard has caused national and international judicial bodies significant hardship and has provoked an arduous debate among scholars. While the occurrence of a specifie speech or utterance can often be easily established, whether such words were motivated by true genocidal intent is an altogether different matter, raising difficult evidentiary hurdles. Sorne scholars argue that a specifie intent to commit genocide is necessary, while others advocate simple knowledge that certain speech could reasonably lead to the commission of genocide, feeling that specifie intent unnecessarily complicates the chances of prosecuting an inciter.279 In other words, those advocating a simple knowledge-based standard fear that a special intent requirement unnecessarily adds to the burden on the part of the prosecutor to objectively determine the subjective element of the crime.280 Even where the specifie intent requirement is accepted as a crucial component of genocide, there is sorne debate, notably in the jurisprudence of the ICTY, as to how to construe a precise standard. Bassiouni, while seemingly agreeing with the specifie intent requirement as such, argues that its conception within the Genocide Convention is too onerous to prove.281 He notes: Quite obviously in situations such as Germany's during World War II where there was a significant paper trail, evidence of specific intent can more readily be established than in cases where such a paper trail does not exist. It is not difficult to think of a number of contemporary conflicts such as those in Cambodia and the former Yugoslavia, where 278 Akayesu, supra note 5 at para. 523. See also, Paul Magnarella, "Sorne Milestones and Achievements at the International Criminal Tribunal for Rwanda: The 1998 Kambanda and Akayesu Cases" (1997) Il Fla. J. Int'l. L. 517 at 532. 279 See generally Alexander Greenawalt, "Rethinking Genocida1 Intent: The Case for a Knowledge-based Interpretation" (1999) 99 Colum. L. Rev. 2259. 280 See for example Nersessian, supra note 115 at 268. 281 Genocide Convention, supra note 3, art. II. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental hann to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group (ibid.) 76 Chapter IIl- Theoretical Approaches to the Criminalization ofIncitement there is obviously no paper trial and where the specific intent can only be shown by the cumulative effect of the objective conduct to which one necessarily has to add the inference of specific intent deriving from omission. 282 In the Karadzic and Mladic Rule 61 Decision, the Trial Chamber appears to invoke an expansive test, allowing for the possibility to infer genocidal intent.283 This holding was reversed in Jelisic. 284 Jelisic is a pertinent illustration of the high mens rea requirement necessary to make a finding of guilt on the charge of genocide. In that case, the ICTY held that Jelisic was "an effective and enthusiastic participant in the genocidal campaign,,,285 although in the end result, it could not prove beyond a reasonable doubt that the accused possessed special intent. It noted: the acts of Goran Jelisic are not the physical expression of an affirmed resolve to destroy in whole or in part a group as such. AlI things considered, the Prosecutor has not established beyond aIl reasonable doubt that genocide was committed in Brcko during the period covered by the indictment. Furthermore, the behaviour of the accused appears to indicate that, although he obviously singled out Muslims, he kilIed arbitrarily rather than with the clear intention to destroy a group. The Trial Chamber therefore concludes that it has not been proved beyond aIl reasonable doubt that the accused was motivated by the dolus specialis of the crime of genocide. The benefit of the doubt must always go to the accused and, consequently, Goran Jelisic must be found not guilty on this count. 286 In Akayesu, the ICTR Trial Chamber followed the ICTY's earlier and more expansive approach, establishing criteria by which specific intent could be adduced. In particular, it noted that: it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberate1y and systematically targeting victims 282 M. Cherif Bassiouni, "Commentary on the International Law Commission's 1991 I.L.C. Draft Code of Crimes against the Peace and Security ofMankind" (1993) Il Nouvelles Etudes Pénales at 233. 283 Cassese, "Genocide", Chapter Il.1, in Rome Statute Commentary l, supra note 272 at 341. See also, Prosecutor v. Karadzic and Mladic (1996), Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case Nos. IT-95-5R61, IT-95-18-R61 (International Crimina1 Tribunal for Rwanda, Trial Chamber). 284 Prosecutor v. Jelisic (1999), Case No. IT-95-1O (International Crimina1 Tribunal for the Former Yugos1avia, Trial Chamber 1) [Jelisic]. 285 Ibid. at oral ruling of 19 October 1999 at 2325 line 1. Online: 77 Chapter III - Theoretical Approaches to the Criminalization ofIncitement on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.287 However, in Kayishema, the ICTR held that while a specific genocidal plan is not a constitutive element of the crime of genocide,288 the existence thereof strengthens evidence of a specific intent requirement for the crime of genocide.289 In turn, a finding of specific intent is not contingent on whether an individual knows "every detail of the genocidal plan or policy in order to form the specific intent to act in furtherance of such a plan or policy.,,29o In sum, while specific intent imposes a high mens rea requirement necessary for a conviction on the charge of genocide, which is arguably "more demanding than that required for murder,,,291 there are a number of objective ways in which proof of such intent can be facilitated. Despite the fact that international jurisprudence displays a contradictory pattern, the overall tendency appears to be the imposition of an expansive standard for specific intent. ii) Crimes against Humanity: a Lesser Evil? Although an act can constitute both crimes against humanity and genocide (and genocide was in fact first conceptualized as a subset of crimes against humanity), these crimes have significantly different characters.292 As noted by Cassese, while there is sorne overlap in the objective elements of the crime, such that an act of killing persons 287 Akayesu, supra note 5 at para. 523. 288 Prosecutor v. Kayishema and Ruzindana (1999), Case No. ICTR-95-I-T (International Criminal Tribunal for Rwanda, Trial Chamber) at para. 94. [Kayishema] 289 Ibid. at para. 276. 290 Virginia Morris & Michael Scharf, The International Criminal Tribunal for Rwanda (Irvington-on Hudson, N.Y.: Transnational, 1998) at 172. 291 Schabas, Genocide in International Law, supra note 9 at 222. 292 Cassese, International Criminal Law, supra note 4 at 106. Cassese, "Genocide" in Rome Statute Commentary l, supra note 273 at 339. As noted in the IL.e. Draft Code Commentary, supra note 76 "[t]he character of a crime is what distinguishes that crime from another crime" (ibid. at 3(3). 78 Chapter III - Theoretical Approaches to the Criminalization ofIncitement belonging to an ethnic group could be characterized as both, the subjective elements of both crimes do not intersect aside from the requisite general intent to see the offence in question accomplished.293 While the subjective element of genocide is construed on the basis of "specific intent to destroy in whole or in part a group," the subjective element necessary for crimes against humanity is lower, requiring the accused to possess merely the knowledge of a "widespread or systematic attack against a civilian population."294 It is noteworthy that knowledge for the purposes of this standard is determined on the basis of a factual rather than legal evaluation.295 However, it is argued that the fact that crimes against humanity arguably possess a less specific mens rea requirement than genocide is no tangible indication that the former category of crimes is inherently less serious than the latter. According to Frulli, the requirement that they be part of a greater plan constitutes an intrinsic element of gravity,296 although as previously noted, in the case of genocide, this need not comprise specific knowledge thereof. In evaluating their relative gravity, it is thus necessary to examine features which are shared by both crimes. In that respect, despite their inherent differences, both categories of crimes have at least three basic elements in common.297 Firstly, their commission is not haphazard or isolated but 293 However, as Cassese notes in International Criminal Law, supra note 4: crimes against humanity have a broader scope, for they may encompass acts that do not come within the purview of genocide (for instance, imprisonment and torture). By the same token, there may be acts of genocide that normally (at least under the Statutes of the ICTY, ICTR, and the ICC) are not held to fall within the other category of crime (for instance, killing detained military personnel belonging to a particular religious or racial group, by reason of their membership of that group). Thus, trom the viewpoint of their objective elements, the two categories are normally 'reciprocally special', in that they form overlapping circ1es which nevertheless intersect only tangentiaIly. (ibid. at 106.) [ ... ] For persecution-type crimes against humanity, however, it is sufficient to prove that the perpetrator intentionally carried out large-scale and severe deprivations of the fundamental rights of a particular group, whereas for genocide it is necessary to prove the intent to destroy a group, in whole or part. (ibid. at 107). 294 Rome Statu te, supra note 8, art. 7(1). As noted by Frolli,: "[t]his last requirement means that crimes against humanity are never isolated and random acts of violence, as may happen with war crimes", (supra note 265 at 334). 295 Michael Bothe, "War Crimes", Chapter Il.3 in Rome Statute Commentary l, supra note 272 at 389. 296 Frolli, supra note 265 at 336. This does not necessarily require knowledge of a genocidal plan. 297 Casse se, International Criminal Law, supra note 4 at 106. 79 Chapter III - Theoretical Approaches to the CriminaUzation ofIncitement rather embedded in a large-scale practice of massive human rights violations.z98 Second, while both crimes are contingent on the official nature of the perpetrator, involvement on the part of the State is commonly through complicity, collusion or acquiescence.299 Finally, and most importantly, in the words of Cassese, genocide and crimes against humanity "encompass very serious offenses that shock our sense ofhumanity in that they constitute attacks on the most fundamental aspects of human dignity.,,300 A more elaborate analysis of the specifie factors involved in determining the gravit y of an offence will be embarked upon in the following section. Suffice it to note at this point that despite divergences in the constitutive elements of both crimes, crimes against humanity can be aligned with genocide for the purposes of criminalizing incitement thereto on the basis of their shared generallevel of gravit y coupled with a high risk of occurrence. Hi) War Crimes War crimes are acts or omissions that are punishable where they are committed both during and sufficiently eonneeted to an armed conflict.301 As noted by the Trial Chamber in the Tadie case: For a crime to fall within the jurisdiction of the International Tribunal, a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law. 302 298 Ibid. at 106. This distinguishes them from war crimes, which are generally sporadic and isolated in nature. 299 Ibid. Interestingly article 7(1) of the Rome Statute, supra note 8 dealing with crimes against humanity, explicitly requires the existence of such a policy. Article 7(2) notes: "For the pUl-pose of paragraph 1: (a) 'Attack directed against any civilian population' means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance ofa State or organizational poUcy to commit such attac/Ç' (ibid.) [Emphasis addedJ. 300 Casse se, ibid. 301 Bothe, Rome Statute Commentary L supra note 272 at 388. The ensuing section (pp. 80-82) is substantially informed by a previous paper entitled "Reconceptualizing Torture", supra note 2 at 24-26. 302 Prosecutor v. Tadic (1997), Case No. IT-94-1 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II) at para. 572. [Tadic (TC)J See also Bothe, ibid. at 389. 80 Chapter III - Theoretical Approaches to the Crimina/ization ofIncitement The precise extent of the nexus between the act and the anned conflict, however, has gamered sorne debate between the ICTY and ICTR. In Tadic/03 the ICTY Trial Chamber proffered a broad standard by which to detennine the link between an offence and an anned conflict. It noted: It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties. It is not, however, necessary to show that anned conflict was occurring at the exact time and place of the proscribed acts alleged to have occurred, as the Appeals Chamber has indicated, nor is it necessary that the crime alleged takes place during combat, that it be part of a po/icy or of a practice officially endorsed or tolerated by one of the parties to the conf/ict, or that the act be in actual furtherance ofa po/icy associated with the conduct of war or in the actual interests of a party to the conf/ict; the obligations of individuals under international humanitarian law are independent and aptly without prejudice to any questions of the responsibility of States under internationallaw. The only question, to be detennined in the circumstances of each individual case, is whether the offences were closely related to the anned conflict as a whole.304 Conversely, the ICTR in Akayesu endorsed a stricter test, requiring proof beyond a reasonable doubt that an individual's acts were to "support or fulfill the war efforts" rather than for "purely personal motives.,,305 "[S]upport to fulfill the war efforts" was explicitly held to mean "active support" as opposed to merely "limited assistance." 306 On the basis of this strict test, a judgment of acquittaI was rendered on aIl counts of war crimes under article 4 of the ICTR Statute.307 RegrettabIy, this standard was followed in subsequent ICTR case Iaw. 308 Fearing the grave consequences of such a restrictive standard, Provo st notes that: "[t]he decisions of the ICTR seem mistakenly to incorporate 303 Tadic (TC), ibid. at para. 573. 304 Ibid. at para. 573 [emphasis added). 305 Akayesu, supra note 5 at paras. 636-42. 306 Ibid. at paras. 636-42. 307 Akayesu, supra note 5 at para 643. The Trial Chamber notes: Considering the above, and based on ail the evidence presented in this case, the Chamber finds that it has not been proved beyond reasonable doubt that the acts perpetrated by Akayesu in the commune of Taba at the time of the events alleged in the Indictment were committed in conjunction with the armed conflict. The Chamber further finds that it has not been proved beyond reasonable doubt that Akayesu was a member of the armed forces, or that he was legitimately mandated and expected, as a public official or agent or person otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts. (ibid.) 308 René Provost, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 100. 81 Chapter III - Theoretieal Approaehes to the Crimina/ization ofIncitement into war crimes an element of crimes against humanity, where the link between the crime and a broader attack against a civilian population is a defining element of the crime.,,309 The De/alie Trial Chamber of the ICTY appears in line with this view, seemingly finding it dangerous to draw such arbitrary distinctions between acts committed for personal gain and acts committed in furtherance of the war effort,310 especially in the context of armed conflict in which these boundaries arguably become blurred.311 Speaking specifically about plunder, the Trial Chamber notes that: the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends to both aets of looting eommitted by individual soldiers for their priva te gains, and to the organized seizure of property undertaken within the framework ofa systematie eeonomie exploitation ofoeeupied territory.312 The effect of the broader reading in Tadie and De/alie is that enemy status, rather than specific actions in furtherance of the war effort, satisfies the requisite nexus requirement for war crimes. Given the inherent state of tension between members of a given society in a state of armed conflict/13 such a broad construction minimizes the risk of artificial delineations underlying specific motives which contribute to the commission of crimes. Consequently, random and isolated acts of violence could attract criminal liability irrespective of the precise motives underlying their occurrence. Although the foregoing standard appears to further broaden the gap between the constituent elements of crimes 309 Ibid. at 100-101. What distinguishes war crimes from crimes against humanity is the proof of systematic governmental planning, which has been considered a necessary element of crimes against humanity, as opposed to war crimes. As such, crimes against humanity are more difficult to establish. See Theodor Meron, "Rape as a Crime Under International Humanitarian Law" (1993) 87 Am. J. Int'l L. 424 at 428. 310 Tadie (AC), supra note 302 at 573. 3ll Provost, supra note 308 at 99. Clearly, sorne offences committed during a contlict, for instance a simple case of theft or an assauIt in a bar brawl, do not cali for application of international law and even less that of war crimes. Such a limiting principle is quite difficult to articultate, however, given that during an armed contlict, relationships between people of different allegiances are coloured by the belligerency. (ibid.) 312 Proseeutor v. De/a/ie et al., (1998), Case No. IT-96-21-T (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II) para. 590 [emphasis added). 3J3 Provost, supra note 308 at 99. 82 Chapter III - Theoretical Approaches to the Criminalization ofIncitement against humanity and war crimes,314 if the justification for bestowing inchoate liability on acts of incitement is not only the level of' gravit y' but also the threat of its commission to the security of humankind, the very characterization of war crimes as international supports an argument in favour of removing the result requirement as a definitional element of incitement to that crime. In the case of war crimes, such an argument holds particularly true when one considers the frequency of their commission and the erratic impulse with which they are inspired, the latter element which is arguably intensified in times of war. Consequently, it is argued that it is not the specificity of the intent, but rather the general level of intent, coupled with the likelihood of a crime's commission, that should guide debates on the constitutive elements of incitement to international crimes. Considerations of relative gravit y on the basis of specificity of intent should instead be weighed at the sentencing stage.315 B. The Relative Seriousness of International Crimes "Ali animaIs are equal but some animaIs are more equal than others. ,,316 George Orwell's infamous statement provides a good starting point for the ensuing debate since it may be illustrative, at least as far as the prosecutorial standard for incitement goes, of the hierarchal treatment of crimes before international criminal bodies. Genocide, crimes against humanity and war crimes are characterized as international offences due to their gravit y and the threat they pose to the international community. Theoretically, as held by Judge Cassese in his Separate Opinion in Tadie, "aIl international crimes are serious 314 However, the Rome Statute, supra note 8, makes a distinction between ordinary war crimes and serious war crimes. 315 Prosecutor v. Tadic (2000), Case No. IT-94-l-A & IT-94-l-Abis, (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber), Separate and Dissenting Opinion of Judge Cassese at para. 7. [Tadic (AC)]. 316 George Orwell, Animal Farm (San Diego: Harcourt Brace Jovanovich, 1990) at Chapter X [emphasis added]. 83 Chapter III - Thearetieal Appraaehes ta the Criminalizatian afIncitement offences and no hierarchy of gravit y maya priori be established between them.,,317 This was to sorne extent reaffirmed in Akayesu, in which the ICTR held that its governing Statute does "not establish a hierarchy of norms" and that the crimes over which the Court has jurisdiction are "on equal footing.,,318 However, it is precisely the idea of gravit y as a measurement of a crime's seriousness, which fuels the debate, notably at the ICTY, about the relative place of each offence in the overall scheme of international crimes. Although it has been argued that comparing international crimes already considered "most grave" creates an arbitrary hierarchy within an expressly recognized category of seriousness,319 it has been asserted that "if the question is asked in abstracto, the different elements characterizing these crimes and the different interests and values protected by the norms forbidding them come into consideration, for they relate to every crime contained in each category and to the categories considered in their entirety.,,320 It is thus the practical implementation of this view, where one act can constitute several international crimes, which engenders greater difficulties.321 As such, The determination of their degree of relative gravit y has extremely concrete implications: it is crucial for the application of penalties. If a conclusion is reached that, aIl else being equal, a 317 Tadie (AC), supra note 315 in Separate and Dissenting Opinion of Judge Cassese at para. 7. 318 Akayesu, supra note 5 at para. 470. The Trial Chamber notes: while genocide may be considered the gravest crime, there is no justification in the Statute for finding that crimes against humanity or violations of common article 3 and additional protocol II are in all circumstances alternative charges to genocide and thus lesser included offences. As stated, and it is a related point, these offences have different constituent e1ements. Again, this consideration renders multiple convictions for these offences in relation to the same set offacts permissible. (ibid.) 319 Judge Li, who is a proponent of this view, discusses this in his Separate and Dissenting Opinion to Erdemavic, supra note 235. [ ... ] 1 submit, in the first place, that the gravit y of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another. Take the present case: the Appellant killed seventy to one hundred innocent Muslim civilians. Whether his criminal act is classified under crimes against humanity or war crimes, the harm done to individuals and society is exactly the same, neither an iota more nor less. Then, why should he be punished more severely if his criminal act is subsumed under crimes against humanity and not war crimes? (ibid. at para. 19) 320 Frulli, supra note 265 at 332. 321 Ibid. 84 Chapter III - Theoretical Approaches to the Criminalization ofIncitement crime against humanity is more serious than a war crime, then the same criminal conduct should entail a heavier penalty if characterized as a crime against humanity ... 322 What appears to be a theoretical equilibrium creates a precarious reality especially in the context of incitement prosecutions. Given that the punishability of inciternent is wholly contingent on the crime to which it attaches, the parameters of this debate are crucial to the future prosecution of this crime. The l.L. C. Drafl Code provides sorne guidance in the resolution of these questions. Article 3 stipulates that: "[a]n individual who lS responsible for a cnme against the peace and security of mankind shaH be liable to punishment,,323 and specifies that such punishment "shall be commensurate with the character and gravit y of the crime.,,324 The l.L. C. Drafl Code Commentary suggests that the context, in which a crime is committed, together with the author' s motivation, are measurements of a crime' s gravity.325 It is noteworthy that the l.L. C. Drafl Code raises war crimes to the level of crimes against the peace and security of mankind where they are committed as part of a widespread and systematic attack, and attributes individual responsibility under article 20 only where such a contextual element exists?26 In elaborating on the requisite elements for war crimes set forth in article 20, the l.L. C. Drafl Code Commentary stipulates that: based on the view that crimes against the peace and security of mankind are the most serious on the scale of international offences and that, in order for an offence to be regarded as a crime against the peace and security of mankind, it must meet certain additional criteria 322 Ibid. at 330. 323 I.L.c. Drafl Code, supra note 76, art. 3. 324 Ibid. Burkhardt, supra note 263 at 555. As noted by Burkhardt, "[p]unishment must stand in strict proportional re1ationship not only to the actor's intention, but also to the resultant harm. To maintain proportionality, a mere attempt must be punished less severely than a consummated crime."(ibid). 325 As noted in the I.L.c. Drafl Code Commentary, supra note 76, art. 3(3): The gravit y is also inferred trom the feelings which impelled the individual, and which are generally called the motive. lt, too, is inferred trom the way in which it was executed: cruelty or barbarity. An individual may not only have intended to commit a criminal act, but also, in so doing, to inflict maximum pain or suffering on the victim. Hence, while the criminal act is legally the same, the means and methods used differ, depending on varying degrees of depravity and cruelty. Ali ofthese factors should guide the court in applying the penalty. 326 Ibid., art. 20. 85 Chapter III - Theoretical Approaches to the Criminalization ofIncitement which rai se the level of seriousness. These general criteria are provided for in the chapeau of the article (20): the crimes in question must have been committed in a systematic manner or on a large scale.327 Consequently, the I.L.C. seems to draw a clear distinction between 'ordinary' war crimes and war crimes which risk the global peace and security ofmankind.328 The Rome Statute adopts a similar view, stipulating in article 8( 1) that: The Court shaH have jurisdiction in respect of war crimes in particular when committed as part ofa plan or policy or as part ofa large-scale commission ofsuch crimes. 329 While this additional requirement is not generally considered a definitional element of a war crime as SUCh,330 the reliance on the need for a systematic manner or large scale commission to justify elevating war crimes in degree and intensity, affirms the importance ofthese criteria as strong indexes of a crime's gravity.331 Indeed, as argued by Judge Shahabudden, these criteria can render a war crime "very serious.,,332 Employing the example of the Nazi regime' s systematic and large-scale killing spree of prisoners of war, Judge Li argues that any discrepancy between crimes against humanity and war crimes must remain at a minimum.333 327 Ibid., art. 20(5). 328 Ibid., art. 20. 329 Rome Statute, supra note 8, art. 8. Interestingly, the Rome Statute establishes a hierarchy within categories of international crimes themselves, adopting the I.L.C. 's stance in the Drafi Code. 330 Tadic (AC), supra note 315 in Separate and Dissenting Opinion of Judge Shahabuddeen at 39. As noted by Judge Shahabuddeen: "[t]he word 'when' shows that the specified circumstances are not required to be proved as an ingredient of the war crime but merely refer to a case in which the war crime is in fact so committed, in which event a crime against the peace and security of mankind is deemed to have been also committed." (ibid). 331 The Rome Statu te, supra note 8, in a compromise solution, incorporates both 'ordinary' war crimes, holding that the knowledge of a widespread or systematic attack acts as an aggravating factor. As noted by William J. Fenrick, "Article 8", in Commentary on the Rome Statu te, supra note 73, while these factors are not definitional elements of war crimes, they "should be taken into account by the Prosecutor in determining whether or not to commence investigations against particular potential accused." Consequently, they aggravate a crime's gravity (ibid. at 181(4)). 332 Tadic (AC), supra note 315 in Separate and Dissenting Opinion of Judge Shahabuddeen at 40-1. As noted by Judge Shahabuddeen, the inception of crimes against humanity "went to the criminalisation of the act on the international plane; it did not go to establish that the crime, once created, was ipso facto more serious than a war crime in relation to the same act." (ibid. at 40-1). 333 Erdemovic, supra note 235 in Separate and Dissenting Opinion of Judge Li at para. 20. 86 Chapter III - Theoretical Approaches to the Criminalization ofIncitement A further element, as stipulated by the 1.L. C. Drafl Code Commentary is premeditation, which serves to exacerbate a crime' s level of seriousness.334 As Frulli argues, "the awareness of a systematic or large-scale plan of violence can be assimilated to sorne form ofpremeditation.,,335 As noted by Ashworth in tum, "[a] person who plans or organizes a crime is generally more culpable, because the offence is premeditated and the offender is therefore more fully confirmed in his antisocial motivation than someone on impulse.,,336 Given that pre-meditation is an inherent characteristic of both genocide and crimes against humanity,337 recognizing their shared general level of gravit y do es not belie their respective particularities. Although the mens rea requirement for genocide is more specific than that of crimes against humanity (an element, which Frulli argues may further elevate its level of gravit y), both crimes share an inherently premeditative element which warrants great concem for humankind. Consequently, the need for prevention is equally as prevalent in both contexts. This conclusion, however, must be informed and qualified by the recognition of the various levels of gravit y even within each category of crime. Specifically, discriminatory intent (notably where it contains a racial element) oftentimes elevates the gravit y of a crime.338 As determined by the ICTY in Kupreskic, the discriminatory intent, which accompanies crimes against humanity of a persecution- 334 IL.e. Drafi Code Commentary, supra note 76, art. 3(3) 335 Frulli, supra note 265 at 336. 336 Andrew Ashworth, Sentencing and Criminal Justice (London: Butterworths, 1995) at 131 [Sentencing and Criminal Justice). Indeed, as Frulli notes, some national criminal codes, such as France, consider premeditation to raise the seriousness of a crime. (supra note 265 fil 25). 337 Frulli, ibid. at 335. She notes: "since the systematic policy or the large scale are constitutive elements of crimes against humanity, this category of offences always includes an inherent element of gravit y." (ibid.) 338 Ibid. at 37, quoting Ashworth, Sentencing and Criminal Justice, supra note 336 at 130-31. 87 Chapter III - Theoretical Approaches to the Criminalization ofIncitement type, as opposed to crimes against humanity of a murder-type, raises their level of gravity.339 As noted by the ICTY: Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as weIl as, in the case of persecution, on account of their political affiliation.34o Despite recognizing their similarities, the Kupreskic Trial Chamber relies on their respective differences to arrive at its conclusion. It notes: Persecution is one of the most vicious of aIl crimes against humanity. It nourishes its roots in the negation of the principle of the equality of human beings. Persecution is grounded in discrimination. It is based upon the notion that people who share ethnic, racial, or religious bonds different to those of a dominant group are to be treated as inferior to the latter. In the crime of persecution, this discriminatory intent is aggressively achieved by grossly and systematically trampling upon the fundamental human rights of the victim group. Persecution is only one step away from genocide - the most abhorrent crime against humanity - for in genocide the persecutory intent is pushed to ifs uttermost limits through the pursuit of the physical annihilation of the group or of members of the group. In the crime of genocide the criminal intent is to destroy the group or its members; in the crime of persecution the criminal intent is instead to forcibly discriminate against a group or members thereofby grossly and systematically violating their fundamental human rights. In the present case, according to the Prosecution - and this is a point on which the Trial Chamber agrees - the killing of Muslim civilians was primarily aimed at expelling the group from the village, not at destroying the Muslim group as such. This is therefore a case of persecution, not of genocide. 341 The ICTR's holding in Nahimana appears congruent with this finding and, as was discussed in the previous Chapter, appears to contemplate the removal of a result requirement element for persecution as a crime against humanity on the basis of its inherent gravity. The finding that persecution constitutes "itself a harm, ,,342 helps support such an argument. Given the foregoing, the recognition that incitement plays a crucial 339 Kupresksic, supra note 189. Kupreskic, an HVO soldier, was convicted for crimes against humanity (persecution) for his implication in the attack on the Muslim inhabitants of Ahmici, a Bosnian village, in April 1993. His conviction was reversed by the Appeals Chamber on the grounds of a defective indictment and inadequate evidence, and Kupreskic was acquitted. Frolli, supra note 265 at 338. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted on the basis of such belonging. 340 Kupresksic, supra note 189 at para. 636. 341 Ibid. at para. 751. 342 Nahimana, supra note 16 at para. 1073. 88 Chapter III - Theoretical Approaches to the Crimina/ization oflncitement role in the preparation of the most serious crimes can facilitate the extension of inchoate liability for incitement to crimes against humanity. Having established that there are sorne grounds to assimilate genocide and crimes against humanity on the basis of their shared inherent characteristics, especially in the case where a crime against humanity is accompanied by the additional element of an intent to discriminate, reliance on the 'gravity' of genocide to justify di fferenti al prosecutorial standards for incitement has the effect of endorsing an illogical and disjointed notion of criminality. Although genocide and crimes against humanity share fewer commonalities with war crimes as far as the pre-meditative element is concerned, they all share a level of seriousness, which renders the mere risk of their commission very grave. While the foregoing analysis has not meant to belittle the inherent characteristics that are particular to each category of international crime, it has sought to demonstrate that the boundaries ascribed to these crimes in a concrete setting, specifically for the purposes of prosecuting incitement, are accompanied by grave conceptual and practical problems. In other words, although such a debate in abstracto determines the degree of punishment on the basis of the gravit y of a crime, in the case of incitement, the characterization of a crime's gravit y actually becomes the decisive factor in determining not the level but rather the existence of an accused's criminal responsibility. The practical consequence of such differential standards is that a person, who incites someone to commit murder in the context of a widespread and systematic attack with knowledge of such an attack, is only puni shed where such murder is in fact committed. Conversely, where that person incites to murder with the requisite intent to "destroy in whole or in 89 Chapter III - Theoretical Approaches to the Criminalization ofIncitement part a group," her act of incitement is punishable irrespective of whether or not the murder takes place. In this sense, causality between incitement and the subsequent acts becomes "pivotaI" in distinguishing both between innocence and guilt and also between different crimes.,,343 In the eloquent words of Steven Ratner, "if this sounds like a haphazard set of mIes making arbitrary distinctions for holding individuals criminally responsible for human rights violations, one has corne to see sorne of the core flaws of international criminallaw as it has traditionally defined international crimes.,,344 Arguably, inchoate liability attaches to genocide on the basis of a combination of several factors, one of the most prominent ones being, as was noted earlier, the very possibility of its commission. Consequently, the criminalization of incitement to genocide attributes both a punitive and preventative role to criminal law, an objective which is explicitly endorsed by the Genocide Convention. 345 As noted by the ICTR, criminalizing such behaviour per se is justified by the "high risk they carry for society, even if they fai! to produce results. ,,346 While it is undisputed that there is a hierarchy of gravit y between crimes based on the specificity and pre-meditative nature of the perpetrator's intent, this fact alone does not persuasively support an argument in favour of creating inchoate liability merely for inciternent to genocide rather than inciternent to other international crimes. In other words, the characterization of a crime as international underrnines the usefulness of 343 "Prosecutor v. Nahimina, Brayagwiza, and Ngeze (The Media Case)" Case Comment (2004) 117. 344 Steven Ratner, "The Schizophrenias ofIntemational Criminal Law" (1998) 33 Tex. Int'l L.J. 237 at 237- 38. This example serves to undermine the logic of artaching inchoate liability merely to the incitement to genocide as opposed to the incitement to crimes against humanity. 345 Genocide Convention, supra note 3, art. 1. 346 Akayesu, supra note 5 at para. 562 [emphasis added). Any differential standards between these categories of incitement should take place at the sentencing level. Logically, as has been recognized by the ICTR, the existence of causality between incitement and subsequent acts fortifies a case against an accused, and can be significant at the sentencing stage. 90 Chapter III - Theoretical Approaches to the Criminalization oflncitement distinguishing further on the basis of specific intent since this factor does not inherently serve to augment the likelihood of its actual commission. On the contrary, as was noted above, the likelihood that war crimes will be committed in the context of an arrned conflict is very high. As a result, it is arguably the stigma attached to genocide rather than the actual risk of its commission, which has been the deterrnining factor in the imposition of inchoate liability for acts of incitement thereto. In construing a precise standard for inciternent, the treatment of incitement to genocide in the body of international criminal law provides pertinent authority. Recognizing that genocide is the product of great deliberation and careful planning on the part of many actors at various levels, the criminalization of incitement is deemed necessary as a preventative measure in the overall commission of genocide. Despite nuances in specificity of intent, it is argued that the seriousness and high risk for society are inherent features of al! international crimes. Accordingly, inchoate liability should be bestowed on acts of incitement to these crimes in the same manner as has been the practice with incitement to genocide. In this sense, a broadening of the common law approach to instances of incitement other than genocide is based on the recognition that the common law is more suitable in the context of international crimes, which are always serious in nature. As has been argued ab ove, the common law approach appears to adequately capture the unique and intangible nature of inciternent, removing from its arnbit high evidentiary hurdles which can impede the successful prosecution of the inciter' s crime alone; it thereby remedies what must be viewed as an inconsistent notion of justice based 91 Chapter III - Theoretical Approaches to the Criminalization ofIncitement on a misunderstanding about the constituent elements of this cnme III international criminallaw. III. Construing an Incitement Standard at the ICC The foregoing has sought to demonstrate that the prosecutorial standard for acts of incitement to crimes other than genocide is inadequate at international criminal law. Although the ICC has not generated any case law on this point, the plain reading of the Rome Statute appears to favour the more restrictive civil law approach. It is argued that the creation of inchoate liability as a general offence would harmonize existing incongruencies in the interplay between incitement standards. A broadened understanding of incitement could be achieved in two possible ways. The first way would be to construe incitement as an offence of general application, as is commonly done in common law systems. As was noted in Chapter II, a fear of infringing freedom of expression has been cited to counter such a proposition, notably at the Rome conference for the creation of the International Criminal COurt. 347 While it is beyond the scope of this discussion to engage in a detailed analysis of the parameters surrounding such arguments, suffice it to state at this point that freedom of expression guarantees do not seek to protect incitement to the commission of an international crime, or any crime for that matter, although the precise parameters of such a standard inevitably vary from nation to nation.348 To defeat the merit of such arguments, the Genocide Convention has explicitly imposed high threshold criteria, namely that incitement be "direct and 347 ICC Travaux Préparatoires, supra note 205 at 46. 348 As noted by the Trial Chamber in Nahimana, supra note 16, however "[t]he Chamber considers internationallaw, which has been well-developed in the areas of freedom from discrimination and freedom of expression, to be the point of reference for its consideration of these issues, noting that domestic law varies widely while internationallaw codifies evolving international standards." (ibid. at para. 1010). 92 Chapter III - Theoretical Approaches to the Criminalization ofIncitement public.,,349 These elements were defined by the ICTR in Akayesu and have not been disputed in subsequent case law emanating from international criminal bodies.350 As was noted in Chapter II, it was specifically held by the drafters of the Genocide Convention that private incitement to genocide is not punishable per se, requiring a direct result even in the presence of specific intent. 35I As noted in Chapter l, these criteria, in a practical context at least, engender sorne complexities. However, given that the crime of genocide is ranked highest on the scale of international crimes, it necessarily follows that these criteria must equally function as threshold requirements in the case of incitement to crimes other than genocide. By imposing these elements on incitement, a distinction would be made for aIl other instances of incitement that may be private in nature. As noted by the Akayesu Appeals Chamber in the interpretation of the plain meaning of its governing Statute: There is a glaring disparity between the English and French text; indeed, the English word 'instigated' is translated into French as 'incite'. That said, the Appeals Chamber is of the opinion that Iinguistically the two terms are synonymous. The Appeals Chamber points out in particular that neither text con tains any suggestion or recommendation that incitement must be direct and public. Consequent/y, by interpreting this provision 'in accordance wilh ils ordinary meaning', the Appeals Chamber ho/ds that, although instigation may, in certain circumstances, be direct and public, this does not however, constitute a requirement. Nothing in Article 6(1) suggests that there is such a requirement. The Appeals Chamber concurs with the Prosecution's argument that 'if the drafters of the Statute had wished to similarly confine 'instigation' to situations where it is public and direct', it would be reasonable to expect that they would have specifically required it. ,,352 349 Genocide Convention, supra note 3, art. III(e). 350 See also, IL.e. Draft Code Commentary, supra note 76, art. 2(16): The eIement of direct incitement requires specifically urging another individual to take immediate criminal action rather than merely making a vague or indirect suggestion. The equally indispensable eIement ofpublic incitement requires communicating the calI for criminal action to a number of individuals in a public place or to members of the general public at large. Thus, an individual may communicate the calI for criminal action in person in a public place or by technological means of mass communication, such as by radio or television. This public appeal for criminal action increases the likelihood that at least one individual will respond to the appeal and, moreover, encourages the kind of "mob violence" in which a number of individuals engage in criminal conduct (ibid.). 351 Schabas, Genocide in International Law, supra note 9 at para. 266. It is punishable because it is subsumed under complicity provisions. 352 Prosecutor v. Akayesu (2001), Case No. ICTR-96-4 (International Criminal Tribunal for Rwanda, Appeals Chamber) at para. 478. 93 Chapter III - Thearetical Appraaches ta the Criminalizatian afIncitement Interestingly, the I.L. C. Drafl Code proposes a much higher standard, requiring that inciternent which "in fact occurs" must necessarily be direct and public, relegating private acts ofincitement to provisions dealing with conspiracy.353 While Chapter 1 has demonstrated variance between as weIl as within legal traditions in their respective approaches to incitement, sorne nations adhering to the civil law approach have puni shed certain public communications per se, such as in the case of France. Consequently, the imposition of such criteria to justify the rernoval of a result requirement for incitement to crimes other than genocide, finds authority in the practice of certain civil law systems; this has the incidental effect of blurring the contours of different legal approaches to incitement, at least as far as these specifie elements of the offence are concerned. Adopting the incitement to Genocide Convention' s incitement model at the ICC to create an inchoate offence of general application would bring about several important results. Firstly, freeing the definition of incitement from a result requirement has the effect of placing more emphasis on the intent of the perpetrator rather than the overall impact of the crime. Second, it enables the punishrnent of unsuccessful inciternent and thus contributes to the effective prevention of these crimes. The second way of conceptualizing incitement under the Rome Statute is to construe it as an alternative mode of committing an offence. To this end, article 25(3)(d) may prove useful. It makes punishable an act which in "any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a 353 IL.e. Drafi Cade Cammentary, supra note 76, art. 2(3)(t)(16). Subparagraph (t) addresses the responsibility of the instigator who "incites another individual to commit such a crime". This subparagraph provides that an individual who directly and public1y incites another individual to commit a crime incurs responsibility for that crime. Such an individual urges and encourages another individual to commit a crime and thereby contributes substantially to the commission of that crime. The principle of individual criminal responsibility set forth in this subparagraph applies only to direct and public incitement. (ibid). 94 Chapter III - Theoretical Approaches ta the Criminalization ofIncitement common purpose,,354 either "with the aim of furthering the criminal activity or criminal purpose of the group" as per article 25(3)( d)(i), or "in the knowledge of the intention of the group" as per article 25(3)(d)(ii). Comparing this wording to the l.L.c. Draft Code's provision, which only criminalizes an individual who "directly participates in planning or conspiring to commit such a crime which in fact occurs,,,355 Ambos argues that "Subparagraph (d) establishes [ ... ] the lowest objective threshold for participation according to article 25,,,356 especially in light of the fact that it requires only a certain degree of contribution to a collective attempt of a crime/57 the objective threshold being the group crime and the subjective threshold being the 'common purpose'. While Ambos differentiates article 25(3)(d) from article 25(3)(e) on the basis that incitement to genocide do es not necessitate the actual commission or even attempted commission of the actual crime,358 a situation can be envisaged in which incitement coincidentally forms part of the proscribed activity and as such, is punishable without the need for a subsequent act. 359 In other words, the characterization of incitement as an alternative means of committing an offence could be possible under article 25(3)(d), allowing for the imposition of inchoate liability by way of satisfying the requisite elements of specific offences set out in articles 5-8, including crimes other than genocide. For instance, as was discussed in Chapter II, the Nahimana Trial Chamber held that incitement to hatred - in the context of a widespread and systematic attack - can constitute persecution as a crime 354 Rome Statute, supra note 8, art. 25(3)(d) [emphasis added]. 355 ILe. Draft Code, supra note 76, art. 2(3)(e) 356 Ambos, Commentary on the Rome Statu te, supra note 73 at 484(21). 357 Ibid. While the first provision requires the individual to "act with a specifie dolus, i.e., with the specifie intention to promote the practical acts and ideological objectives of the group" (ibid. at 486 (para. 24», the second requires the individual to be "aware of the intention ... to commit the crime", i.e. the participant must be aware of the specifie crime intended by the group" (ibid. at para 25). 358Ibid. at 487(29). 359 Conversation with Professor Patrick Healy (12 October, 2004). 95 Chapter III - Theoretical Approaches to the Crimina/ization ofIncitement against humanity where it is accompanied by the requisite intent to discriminate (dolus speciales).360 As explicitly noted by the Chamber, liability is not contingent upon proof that hatred is in fact incited in another person but rather on the mere proof that the communication was hateful, a fact which constitutes "itself the harm".361 Although it is not clear whether the ICC Trial Chamber will concur with the ICTR Trial Chamber's finding, the Nahimana holding illustrates a scenario in which acts of unsuccessful incitement to aIl international crimes could be prosecuted under the Rome Statute (provided the chapeau elements are satisfied), especially under the broad scope of article 25(3)(d). It is noteworthy that under this construction, incitement would presumably not be subject to, at least in the same degree, the direct and public requirements, criteria which are currently imposed on incitement to genocide under the Rome Statute. IV. Conclusion The foregoing Chapter sought to question the adequacy of and rationale behind the prosecutorial standard for the crime of incitement in the Rome Statute. Moreover, the concrete context of incitement prosecutions exposes the practical and conceptual pitfalls of creating a hierarchy between crimes. As was seen in Chapter II, the Rome Statute has adopted international criminal law's differential treatment between incitement to genocide and incitement to aIl other crimes; the different terms applied to incitement in both contexts within the parameters of the Rome Statute is illustrative thereof. While jurisprudence emanating from international criminal bodies, notably the ICTY and ICTR, seem congruent on this point, the recent case of Nahimana appears to destabilize the intransigence of such findings. Although in its overall findings the Nahimana Trial 360 Nahimana, supra note 16 at para. 1071. See also para. 1077 361 Ibid. at para. 1073. 96 Chapter III - Theoretical Approaches to the Criminalization ofIncitement Chamber reconfirms different categories of incitement, it does appear to question these boundaries by seemingly extending inchoate liability to crimes against humanity of a persecution-type. While it remains to date unclear how the prosecution of incitement wiU develop at the ad hoc international criminal tribunals in the years that remain, it is clear that Nahimana has the potential to spur a great debate over the precise parameters of these standards, notably at the ICC. Given the foregoing discussion, the prosecution of incitement must be informed by the recognition that aU international crimes are related by a general gravit y and the high risk of occurrence, factors which endanger both the security oftheir immediate victims and the international community as a whole. 97 Conclusion CONCLUSION Over the last fifty years, the world has witnessed tremendous developments in the notion of individual criminal responsibility. International criminal bodies have proffered and refined a definition for crimes against humanity as weIl as genocide and have dec1ared their willingness to impose criminal liability on incitement to genocide irrespective of wh ether or not it brings about the desired results. The fact that such a proposition remains largely theoretical to date should not serve to mitigate the possibility that such a finding could indeed be made. However, the imposition of a result requirement for incitement to crimes other than genocide is reflective of a misunderstanding about the significant role of incitement in the commISSIOn of international crimes. While gravit y is the factor that elevates crimes to the international order, it is here argued that within this already expressly established category of grave crimes, the inherent risk of a crime' s commission must become a crucial element in incitement prosecutions. To date, the focus has been placed on a limited view of "gravity" , which is significantly shaped by the degree of intent. This thesis has sought to deconstruct the pre-conceived assumptions underlying categories of international crimes and incitement thereto, and has proposed to curt ail the specific level of gravit y in favour of a generallevel of gravit y (the latter which must be assumed in the case of international crimes) and an increased evaluation of the risk underlying a crime' s commission. Chapters 1 and II have attempted to outline the CUITent international prosecutorial standards for what must be viewed as two contradictory understandings of incitement. The fact that the ICC draws on two incongruous legal approaches creates a precarious 98 Conclusion disequilibrium in the overall prosecution of incitement. However, as these chapters have equally sought to outline, nuances within national legal systems themselves may serve to blur boundaries established between different legal traditions. In other words, arguably international criminal law upholds purely theoretical distinctions that may not be as definitively reflected in national systems themselves. Although the Rome Statute appears to have taken a definitive stance, the ICC's complementarity principle complicates the interplay between sources of law in endorsing different approaches to incitement at the national level. As has been argued in this thesis, there are compelling reasons for the ICC to incorporate and adhere to a broadened prosecutorial standard for the crime of incitement either as a general offence or as an alternative way of committing an offence. Such a reconceptualization would better reflect the understanding that incitement must be viewed as a fundamental component to the «successful" completion of crimes. Attaching incitement to one crime on the basis of its higher gravity within an already recognized scale of gravity seems to belie reasons underlying their 'internationalization' in the first place. Further, the idea of attaching inchoate liability to acts of incitement to crimes other than genocide better reflects the fundamental tenets of basic criminal law, which require the unison of the actus reus and mens rea in the criminalization of conduct. Moreover, and interrelated, the common law approach to incitement in the international context appears significantly more effective as a preventative tool, mitigating the risk of heinous international crimes in their early preparatory stages, and thus leading to prevention of future harm. The dut y to prevent the occurrence of international crimes is enshrined in many international instruments, most notably the 99 Conclusion 362 363 364 Genocide Convention , the Torture Convention , and the Rome Statute. Indeed, as noted by Sehabas, "[a]lthough a punishable aet of genoeide, ineitement also bears on the obligation of States parties to prevent genoeide.,,365 Indeed, as he further notes, "punishment and prevention are intimately related," in that "[e]riminal law's deterrent funetion supports the daim that prompt and appropriate punishment prevents future atroeities.,,366 Inevitably, sueh an argument must be informed by historie al and present day examples, which demonstrate that the criminalization of heinous international crimes has not led to the absolute prevention of these crimes. Although not flawless, the foregoing argument is nevertheless based on the idea that such criminalization can significantly mitigate the occurrence of such crimes, an objective clearly endorsed by the Rome Statute. Ultimately, the common Iaw approach better recognizes criminal Iaw's role as a mechanism, which is at the same time normatlve,. 367 pumtlve.. 368 an d preventatlve. . 369 1nevlta . bl y, th ese normatlve . aspects work together to facilitate the imposition of penalties and, as noted by Burkhardt, ultimately, "the purpose of punishment is the prevention of erime.,,370 Given the Rome Statute's determination "to put an end to impunity for the perpetrators of these crimes and thus to 362 Genocide Convention, supra note 3, art. 1. "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." (ibid.) 363 Torture Convention, supra note 258, art. II(l). Art. II(l) stipulates: "Each State Party shaH take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."(ibid.) 364 Rome Statu te, supra note 8, Preamble (para. 12). The Preamble stipulates its determination "to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes." (ibid). 365 Schabas, Genocide in International Law, supra note 9 at 279. 366 Ibid. at 447. 367 Frolli, supra note 265 at 331. The term "normative" defines the elements of a criminal act (ibid.) 368 Ibid. at 331. The notion of "punitive" provides for an appropriate punishment (ibid.). 369 Schabas, Genocide in International Criminal Law, supra note 9 at 245. 370 Burkhardt, supra note 263 at 555. 100 Conclusion contribute to the prevention of such crimes,,,371 a broadened recognition of incitement, whether it be prosecuted as a specifie offence or as an alternative mode of committing an offence, appears congruent with the underlying objectives and the spirit of the Rome Statute. This is especially so in light ofthe ICC's temporal jurisdiction, which, unlike its ad hoc predecessors' retrospective jurisdiction, is prospective.372 Consequently, "the ICC would have an obvious advantage" in fulfilling its preventative role.373 As Kofi Annan, D.N. Secretary General has proc1aimed: In the prospect of an international cri minaI court lies the promise of univers al justice. That is the simple and soaring hope of this vision. We are close to this realization. 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