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.
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.
posted by Chile Eboe-Osuji | 3:29 PM
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