GENOCIDE
Genocide is one of the greatest crimes
under international law, often called the "crime of crimes" after the
Nuremburg Trials. According to Article 2 of the 1948 United Nations
Convention on the Prevention and Punishment of the Crime of Genocide defines
genocide as "any of the following acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group, as such:
killing members of the group; causing serious bodily or mental harm to members
of the group; deliberately inflicting on the group conditions of life,
calculated to bring about its physical destruction in whole or in part;
imposing measures intended to prevent births within the group; [and] forcibly
transferring children of the group to another group."
Under most legal constructions of genocide (e.g.,
under the statutes for the International Criminal Tribunals for the Former
Yugoslavia and for Rwanda), liability for genocide extends to those who
“planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution” of one or more of the aforementioned
genocial acts [ICTY Art. 7(1)]. In general, both public and private individuals
are punishable [ICTY Art. 7(2)]. Leaders can be held accountable for the
criminal actions of their subordinates if they knew or should have known about
the actions and failed to prevent or punish them [ICTY Art. 7(3); Krstic,
ICTY, Appellate Judgment § 140].
Genocidal intent requires that acts must be
committed against members of a group specifically because they belong to that
group (Akayesu, ICTR, Trial Judgment § 521), but it does not
require that the acts be perpetrated solely because they belong to that group (Niyitegeka,
ICTR, Trial Judgment §§51-53). Genocidal intent can, “in the
absence of direct explicit evidence, be inferred from” circumstantial evidence
(Jelisic, ICTY, Trial Judgment § 47). When proving genocidal intent
based on an inference, “that inference must be the only reasonable inference
available on the evidence” (Krstic, ICTY, Appellate Judgment § 41).
Incitement to Commit Genocide
Under Art.
25(3)(e) of the Rome Statute of the International Criminal Court, a person who
“directly and publicly incites others to commit genocide” has committed a crime
against international law. Notably, there is no explicit requirement in this
subsection of Art. 25 that genocide actually be committed. Conservative
interpreters might be quick to assume such a requirement, but the drafting in
Art. 25(3)(b) provides that one who “orders, solicits or induces the commission
of such a crime”—in this context war crimes and crimes against humanity—is
liable only if that crime “in fact occurs or is attempted.” In other
words, incitement to war crimes and crimes against humanity is punishable only
if the crime occurs or attempted, but incitement to genocide is punishable regardless
of the crime’s actually occurring or being attempted. The ICTR's Trial Judgment
in Nahimana presented historical evidence that the drafters of the
U.N. Genocide Convention intended that incitement convictions not require
genocidal acts (§ 678). Direct incitement requires “a direct appeal to
commit an act referred to in [the Genocide Convention]… it has to be more than
a vague or indirect suggestion” (Nahimana, ICTR, Trial Judgment § 692;
see also Akayesu, ICTR, Trial Judgment § 556). On the other hand,
according to the Akayesu court, the “directness” of incitement must be
determined in light of its context and audience; inciting speech can be coded
or “implicit” or otherwise not obvious to outside observers but still be
“direct” (§ 556). Akayesu’s directness test, subsequently
followed by Nahimana, requires that “persons for whom the message was
intended immediately grasped the implication thereof” (Akayesu §
558). That is, it must be unambiguous in its intended context (Nahimana
§ 701). Sumber: http://www.law.cornell.edu/wex/Genocide.
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