The Continuing Effects of Incitement to Commit Genocide

On 28 November 2007, the Appeals Chamber of the International Criminal Tribunal for Rwanda finally released its long awaited judgment in Prosecutor v Nahimana and Ors (the Media Case).

It was immediately apparent that the judgment contained some interesting points which will occupy scholars in the next little while. Pity I do not have the courage to plod through the French text of the main judgment with great care. I must await the English translation, for a more thorough read.

From the Dissenting Opinion of Judge Shahabuddeen (written in English) it was readily apparent that the Majority rejected the Prosecution argument on whether incitement is a continuous crime. The Majority of the Appeals Judges appear to have held the view that the effect of incitement is only instantaneous. [para 723] I see that good old Shahabuddeen was in classic flowin his dissent on this point. I was, however, expecting him to make the point that incitement metamorphosises into instigation, once the incitement has been acted upon. Thus, the inciter to genocide simply becomes a genocider. In my view, that is all that the Majority needed to see. This argument has to be compelling. Why is it the clincher? The simple answer is this: without that view, instigation will virtually have lost any meaning in article 6(3) of the ICTR Statute where instigation is provided as a mode of individual criminal responsibility. In other words, we cannot have instigation if the conduct said to instigate is treated as having no juridical value beyond the instant of its utterance. The foregoing consideration makes it important to try and limit the effect of the AC Majority reasoning as indicated in para 723. This can be done by confining the import of that reasoning only to the notion of incitement simpliciter, to the extent that incitement is a distinct crime apart from the notion of instigation as a mode of criminal liability.

Shahabuddeen J also wrote that there is no authority on the question in general. I'm not too sure about that. For one thing, in law of defamation, libel is treated differently from slander. Libel consists of written or broadcast defamation and is said to have continuous effect. The reason for this hinges on the ability of libellous matter to exert injurious effect on the victim beyond the moment of utterance or publication. There is ample authority on this point. It is of course in the area of civil remedies; nevertheless, the analogy is compelling. What is more, the criminal law of seditious libel is based largely on its civil counterpart.

ICL - Reading List - Part I

INTERNATIONAL CRIMINAL LAW (FALL TERM) 2006
SYLLABUS

Professor: Chile Eboe-Osuji



PART I

Topics

(1) International law as a frame of reference in the notion of international criminal law
(2) Definition of international criminal law
(3) Sources of international criminal law
(4) Some Notable Concepts in International Criminal Law:

o In dubio pro reo
o Ne bis in idem
o Principle of Legality
nulla crimen sine lege
nulla poena sine lege
o Nulla poena sine culpa
o Jus de non evocando
o Jus Cogens
o Concepts of Jurisdiction
§ universal jurisdiction – jurisdiction erga omnes
§ concurrent jurisdiction
§ primary jurisdiction
§ exclusive jurisdiction
§ complementary jurisdiction



Recommended Reading

(1) Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th edn [London and New York: Routledge, 1997]

- chapter 1 - Introduction
- chapter 2 - History and Theory
- chapter 3 - Sources of International Law
- chapter 4 - International Law and Municipal Law
- chapter 6 - International Organisations, Individuals, Companies and Groups
- chapter 14 - Human Rights

(2) Kriangsak Kittichaisaree, International Criminal Law [Oxford: OUP, 2001]
- chapter 1 – Review of Relevant Concepts

(3) International Committee of the Red Cross, ‘What is International Humanitarian Law?’ [July 2004] (accessed 9 September 2006)


(4) Judgment of the International Military Tribunal for the Trial of German Major War Criminals in The Trial of Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, 30 September and 1 October 1946, Part 22, (1950) at 446 - 447 [see ].

(5) Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) 2 October 1995 [ICTY Appeals Chamber]

(6) Prosecutor v Kanyabashi (Decision on Defence Motion on Jurisdiction) 18 June 1997 [ICTR Trial Chamber II]

(7) Charter of the UN, preamble, art 1 and Chapter VII

(8) Prosecutor v Hadžihasanović & ors (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility) 16 July 2003 [ICTY Appeals Chamber]

(9) Prosecutor v. Hadžihasanović and Ors (Decision on Interlocutory Appeal Challenging Jurisdiction in relation to Command Responsibility) (16 July 2003) (ICTY Appeals Chamber, Separate Opinion of Judge Shahabuddeen)

(10) Prosecutor v Milutinović, Sainović and Odjanić (Decision on Dragoljub Odjanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise) 21 May 2003 [ICTY Appeals Chamber]

(11) Prosecutor v Ndindiliyimana (Decision on Urgent Preliminary Motion to Stay the Indictment or in the Alternative to Cure Defects in the Indictment) 19 October 2000 [ICTR Trial Chamber III]

(12) Hamdan v Rumsfeld (2006), 415 F 3d 33 [Supreme Court of the United States] <>

(13) R v Bartle and the Commissioner of Police for the Metropolis and ors ex parte Pinochet (No 3) [2000] 1 AC I47 [UK House of Lords]

(14) Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) 14 February 2002 [ICJ] <http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm>

(15 ) C Eboe-Osuji, ‘Genocide, Justice and the Forensic Sensibilities of the International Committee of the Red Cross’ Chinese Journal of International Law (2006) Vol 5, No 1, p 149;

(16) C Eboe-Osuji, ‘Murder as a Crime against Humanity at the Ad Hoc Tribunals: Reconciling Differing Languages’ [pending publication in the Canadian Yearbook of International Law]

Killing as an Act of Genocide

In Prosecutor v Rutaganda (Judgment and Sentence) dated 6 December 1999, Trial Chamber I of the International Criminal Tribunal for Rwanda (ICTR) was faced with a problem of resolving a difference in the texts of the definition of genocide as provided for variously in the English and French versions of art 2(2)(a) of the ICTR Statute. The English version of art 2(2)(a) lists 'killing' as an act of genocide, while the French text indicates meutre [the French word for murder] as the equivalent concept. Noting that 'killing', in the English version, may include intentional and unintentional homicide, ‘the Chamber [held] that the version more favourable to the accused should be adopted, and [found] that art 2(2)(a) of the Statute must be interpreted in accordance with the definition of murder in the Criminal Code of Rwanda, which provides, under art 311, that “Homicide committed with intent to cause death shall be treated as murder.”’ [Rutaganda Judgment, para 50]

The Chamber’s reception of the Rwandan law in this manner is not free from difficulties.

The purpose of art 311 of the Rwandan Criminal Code is to define murder. But the purpose of art 2(2)(a) of the ICTR Statute is to define genocide. In the above dictum, the Chamber has managed to cross these purposes. There is no need to do so. Murder and genocide under the respective provisions have already been ascribed the necessary intent. It may not be necessary or advisable to create double intent for genocide as regards the genocidal act of killing, when the framers of the ICTR Statute have not done so.

Having said this, one must note that art 2(2) purports to describe the conducts therein enumerated as 'acts' and not as 'crimes'. It is when these acts are committed with the genocidal intent described in the general clause of art 2(2) that we have the crime of genocide. This ought to be the road to the interpretation of art 2(2) as regards killing as an act of genocide.

This interpretation is consonant with ordinary notions of criminal law in which a crime comprises of an act and the proper mental element for it, according to the Latin maxim actus non facit reum, nisi men sit rea [the act alone does not make a crime, unless there also be a guilty mind].

Murder is not merely an 'act'. It is a crime. It becomes incongruous to substitute this crime for an act, when the language of the provision logically meant to list an act (actus reus) whose intent (mens rea) had already been described in the general clause of art 2(2).

One particular problem that might arise from the interpretation employed by the Trial Chamber becomes this: will there not have been genocide by killing where a person had embarked on any of the other four acts of genocide, with the necessary genocidal intent? For instance, if an accused caused serious bodily harm to a victim, with the necessary genocidal intent, and the victim dies in the process. Will it then be a defence to say that all that the accused intended was to cause serious bodily harm and not death? Perhaps not. The culprit may still be held guilty of killing with genocidal intent. He may get a discount in sentencing, as the Court sees fit, compared with the conduct of someone who precisely intended to occasion death, with the necessary genocidal intent. This view will actualise the purpose of the international community who intended to eradicate the thought of genocide from the human mind.

If, however, murder must be the key word in art 2(2)(a), the minimum that ought to be done will be the adoption of a definition of that term in Akayesu, instead of the definition in art 311 of the Rwandan Criminal Code. This will be more consonant with the purpose of the proscription of genocide in international law, as well as with prior jurisprudence of the ICTR. In Akayesu, the Chamber said as follows (at para 589):

The Chamber defines murder as unlawful, intentional killing of a human being. The elements of murder are:

(a) Victim is dead
(b) The death resulted from an unlawful act or omission of the accused or a subordinate
(c) At the time of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased having known that such harm is likely to cause the victim's death, and is reckless as to whether or not death ensures [sic] or not.

It must be noted that this manner of mens rea is not included among the manner of mens rea for murder proscribed in art 311 of the Criminal Code of Rwanda (whose definition of murder the Chamber has incorporated into art 2(2)(a) of the Statute to explain the term killing as therein used).

It must be pointed out though that the Akayesu Chamber does go on to say as follows at para 590:

Murder must be committed as part of a widespread or systematic attack against a civilian population. The victim must have been murdered because he was discriminated against on national, ethnic, racial, political or religious grounds.

The additional elements added in para 590 are perfectly understandable, for the Chamber was defining the meaning of murder as a crime against humanity under art 3 of the Statute. These additional elements, however, do not, for purposes of genocide, diminish the usefulness of the definition provided in para 589. That definition will add symmetry and consistency to the law as developed at the ICTR. Clearly, the Rutaganda Trial Chamber was operating under this assumption when it held that the specific elements of murder as laid down in relation to crimes against humanity will also inform the meaning of murder as a war crime. [See para 107.]

Another problem with the importation of art 311 of the Rwandan Criminal Code in the intellection of killing as an act of genocide is that art 311 does not really assist much. Other provisions surrounding it will confuse the discourse rather than clarify it. [1] What would have been more helpful, perhaps, was a systematic, expert exposition of applied Rwandan homicide law. And that is lacking in the Rutaganda importation of the term as it exists in Rwandan law.

Perhaps, the dilemma here should be to reconcile the appearance of meutre in the French version of art 2(2)(a) of the ICTR Statute with killing in the English version. One way of doing so will be to follow the counsel of a Canadian judge to the effect that where the language of a provision is imperfectly expressed, the Court may follow the construction that best reflects the true purpose of the Statute.

In Rutaganda, the Chamber adopted this approach in reconciling the divergence of the coordinator appearing between 'widespread' and 'systematic' under art 3's proscription of crimes against humanity: in the English version of the provision the coordinator is 'or' while it is 'and' in the French version. The Chamber followed the English version as best expressing the purpose of the provision. [Paras 67 and 68.]

FOOTNOTES:
[1] Take this instance. In explaining what is 'voluntary homicide and voluntary bodily injuries', art 310, among other things, provides that any of these acts 'is considered premeditated where there is a prior decision before the attack to make an attack on an individual'. [Emphasis added.] Art 310 also makes 'ambush' a significant action in the context of homicide and defines it as 'the act of waiting for the victim for a period of time, in one or several places to commit homicide or inflict bodily injury.' Then, at art 312, it is provided, 'Murder committed by premeditation or ambush is an assassination; the punishment is the death penalty.' [Emphasis added.] And art 316 provides 'Anyone who uses torture or barbarian acts to commit a felony, regardless of the nature of the felony, shall be punished as if the act was an assassination.' In view of these provisions, to rely on Rwandan law in the exposition of the law of genocide, as was done in Rutaganda, will cause obvious confusion such as: As murder is not the only type of homicide provided for under the Rwandan Criminal Code, should the Tribunal also import into the jurisprudence of the Tribunal the concepts of 'assassination' and 'ambush'? If not, why not? (After all, these too are manners of killing under Rwandan law of homicide.) Will the person whose act of killing, which merely qualifies as murder under Rwandan law, receive the same, more, or less punishment as someone whose act of killing would qualify as assassination under Rwandan law? (Consider that assassination is obviously a worse crime than murder.) Will the provision of art 316 also inform the Tribunal's assessment of other acts of genocide (other than killing), and other crimes proscribed elsewhere in the Statute of the Tribunal?