A CRITIQUE ON THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO GENOCIDE UNDER ARTICLE 23(3) (E) OF THE ROME STATUTE. BY: MARIA SIAMOYA 003-116 A Dissertation submitted to the Faculty of Law of the Cavendish University in partial fulfillment of the requirements for the award of the Degree of Bachelors of Laws (LLB). SUPERVISOR: MR. NKWAZI NKOSI NDLOVU JUNE, 2020 LUSAKA ZAMBIA i DECLARATION I, MARIA SIAMOYA, do hereby declare that this dissertation is my authentic work, and to the best of my knowledge, information and belief, no similar piece of work has previously been produced at Cavendish University Zambia or any other institution for the award of Bachelor of Laws Degree. All other works in this essay have been duly acknowledged. ………………………………………………… Candidate’s signature I recommend that the Directed Research Essay prepared under my supervision by: MARIA SIAMOYA (003-116) Entitled: A CRITIQUE ON THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO GENOCIDE UNDER ARTICLE 23(3) € OF THE ROME STATUTE. Be accepted for examination. I have checked it carefully and am satisfied that it fulfills the requirements pertaining to format as laid down in the regulations governing Directed Research Essays. Supervisor…………………………. Date………………………………… Mr NkwaziNkosi Ndlovu DEDICATION ii I dedicate this thesis to my beloved mum Commissioner Margeret Siamoya and my siblings for their prayers, support, encouragement, love and resources rendered to me throughout my study period in law school and during this research. You are an inspiration to me and I will forever be grateful. To my lecturers, for your encouragement has kept me through this research era, your time and your contributions have made this research successful. I really appreciate. Indeed your investment in me is for a lifetime. iii ABSTRACT The purpose of this thesis was to enquire whether the full effectiveness of the criminalization of incitement to Genocide is threatened by the Rome Statute of the International Criminal Court, which reduces the status of incitement from a crime in its own right to a mode of criminal participation in genocide. Further this research was to suggest reforms or recommendations which might be considered by parties to the Rome statute to put incitement to Genocide as an independent crime and not a form of participation. This study also brought about the importance of the public element of incitement to Genocide and how this element has been varied and interpreted differently in a case by case basis at a very successful degree. Thus a clear interpretation of what “public” means must be established so as to end impunity. This research was conducted through the Ministry of defense, Ministry of home affairs and the private sector in relation to criminal law that provided the study with analytical data which was interpreted in the study. Data was collected through documentary analysis, questionnaires and interviews. Quantitative data were analyzed by means of descriptive statistics Qualitative data were subjected to content analysis. Based on the findings and analysis on the data, it can be concluded that Zambia has been a party to the ICC since 1998 when it signed to be a member and 2002 when it ratified to be a member. However, during the 2006 meeting the minister of justice expressed the willingness of Zambia to implement the Rome statute but this has not been possible because of constitutional changes that have not been successful. Therefore as of now there is no specific law governing incitement of Genocide in Zambia and the legislature should consider formulating or including one. iv ACKNOWLEDGEMENTS First and foremost, special gratitude goes to the Almighty God, for the successful completion of the research and the paper. Further thanks also goes to my mother Commissioner Margaret Siamoya, for her prayers and unwavering support rendered during the period of this research. You are an inspiration and am proud to be your Daughter. I wish to acknowledge my profound gratitude to my Supervisor Mr. Nkwazinkosi Ndlovu for the guidance and direction in the preparation of this work. I am grateful. I am perpetually grateful to my siblings and friend Catherine Siamoya, Gloria Siamoya and Blessed Siamoya for their encouragement, motivation and prayers rendered during my academic life and family moments. Special thanks to the Ministry of Justice and Ministry of Home Affairs for providing me with relevant information during the period I was conducting interviews with their respective personnel. I further want to extend my well founded and heartfelt gratitude to Mr. Brighton Masheke, who was there for me inclusive of crucial moments from the time I enrolled into law school till my completion thank you for your support and love during this period. May the good Lord bless you All. v LIST OF ABBREVIATIONS AC Appeals Chamber Art. Article Arts. Articles Doc. Document Genocide Convention Convention on the Prevention and Punishment of the Crime of Genocide ICC International Criminal Court ICG Incitement to Commit Genocide ICCSt Rome Statute of the International Criminal Court ICJ International Court of Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia Id. Ibidem NMT Nuremberg Military Tribunal Nuremberg Charter Charter of the International Military Tribunal OPT Office of the Prosecutor, International Criminal Court PCIJ Permanent Court of International Justice PTC Pre-Trial Chamber PARA Paragraph TC Trial Chamber vi UN United Nations vii LIST OF STATUTES Rome Statute of the International Criminal Court 17 July 1998 Convention on the Prevention and Punishment of the Crime of Genocide 12 January 1951 Penal Code, CAP 87 Of the Laws of Zambia November 1931. viii CONTENTS DECLARATION…………………………………………………………………………………..ii DEDICATION……………………………………………………………………………………. iii ABSTRACT………………………………………………………………………………………. iv ACKNOWLEDGEMENTS……………………………………………………………………… v LIST OF ABBREVIATION……………………………………………………………………… vi LIST OF STATUTES…………………………………………………………………………….. viii CHAPTER ONE………………………………………………………………………………….. 5 1.1 Introduction…………………………………………………………………………………….. 5 1.2 Background…………………………………………………………………………………….. 5 1.3 Statement of the Problem………………………………………………………………………. 7 1.4 Scope……………………………………………………………………………………………8 1.5 Objectives……………………………………………………………………………………… 8 1.6 Hypothesis……………………………………………………………………………………... 8 1.7 Research Question……………………………………………………………………………... 8 1.8 Justification Of Significance…………………………………………………………………… 9 1.9 Outline of Chapters…………………………………………………………………………….. 9 1.10 Chapter 1: Introduction …………………………………………………………………… 9 Chapter 2: Literature Review………………………………………………………………………. 9 Chapter 3: Research Methodology…………………………………………………………………. 10 Chapter 4: Data Presentation and Data Analysis ………………………………………………….. 10 Chapter 5: Conclusion and Recommendations…………………………………………………..… 10 1.11 Conclusion............................................................................................................................ 10 CHAPTER TWO…………………………………………………………………………………. 11 LITERATURE REVIEW………………………………………………………………………... 11 1 2.1 Introduction………………………………………………………………………………………… 11 2.2 The need for an international criminal court and the creation of the ICC…………………………. 11 2.3 Crimes under the Jurisdiction of the ICC…………………………………………………………... 12 25 “Individual Criminal Responsibility in Article 25 of the Rome Statute…………………………… 13 2.3.1 Direct and Public incitement to commit genocide under Art 25(3) (e) of the Rome statute…... 15 2.4 The Primary Factors of incitement to commit Genocide……………………………………….….. 16 2.5.1 The meaning of direct incitement for the purposes of criminal liability under Art.(25)(3) (e)………………………………………………………………………………………………. 17 2.5.2 The meaning of public incitement for the purposes of criminal liability under Art.(25)(3) (e)……………………………………………………………………………………………….. 18 2.6 The requisite Men’s Rea under Art.25 (3)(e) of the ICCSt…………………………………….. 19 2.7 The Mens rea need not to match the actus reus of the crime……………………………………….. 20 2.8 When does private incitement become public? ……………………………………………….......... 20 2.9 Incitement as interpreted by the International Criminal Tribunals ………………………………… 21 2.10 A Distinction between Incitement and hate speech. …………………………………………….22 2.11 Conclusion………………………………………………………………………………………. 23 CHAPTER THREE…………………………………………………………………………………….. 24 RESEARCH METHODOLOGY……………………………………………………………………… 24 3.1 Introduction……………………………………………………………………………………… 24 3.2 Research Methodology and Approach…………………………………………………...……… 24 3.3 Research Design…………………………………………………………………………………26 3.4 Time Horizon………………………………………………………………………………….….26 3.5 Sources of Data………………………………………………………………………………..….26 3.6 Primary Data…………………………………………………………………………………….. 26 3.7 Secondary Data…………………………………………………………………………….......... 26 3.8 Sampling Frame…………………………………………………………………………………. 27 3.9 Sampling Technique…………………………………………………………………………….. 27 3.10 Purposive Sampling…………………………………………………………………….. 27 3.11 Dimensional Sampling………………………………………………………………….. 27 3.12 Data Collection Techniques…………………………………………………………….. 28 3.13 Questionnaire………………………………………………………………………….…28 3.14 Interviews………………………………………………………………………………..28 3.15 Reliability and Validity……………………………………………………………….….29 3.16 Ethical Consideration………………………………………………………………..….. 29 2 3.17 Limitations of The Study…………………………………………………………… 30 3.18 Conclusion………………………………………………………………………….. 30 . CHAPTER FOUR…………………………………………………………………………………... 31 DATA ANALYSIS AND INTERPRETATION…………………………………………………… 31