Hello, welcome back to International
Criminal Law with Michael Scharf.
In today's session we're going to be
looking at the issue of.
International criminal responsibility.
This is different than regular criminal
law because when it comes
to international crime, they're usually
committed by large groups of people.
Think about terrorist networks or.
Pirate groups or war crimes that
are committed by government and military
agents.
Crimes against humanity that are commited
by paramilitary groups.
Now what makes group
activity difficult and unique is that the
leader can be very subtle.
And leaders have learned this trait from
Nuremburg when the Nazis as I said
in an earlier session were really
convicted
on the strength of their own
documentation.
Now leaders try not to document their
orders that they think may be one
day considered a war crime or an illegal
order so they'll say things like.
You know what I want
you to do now go do it, and other's might
say let's go out and get the
job done and kill the cockroaches when
they're not
really talking about cockroaches but
really another ethnic group.
So over the years starting with Nuremburg
the international
community has wrestled with special rules
that would help.
Prosecutors be able to prove international
crimes in
a situation where it might be very
difficult
to do so under the ordinary types of
liability that apply in domestic systems.
And so that's what we're going to be
looking at today.
Our objectives are first of all to learn
about the history and application of
command responsibility.
This is the kind of law that applies when
a military or
civilian superior is held responsible for
the things that their subordinates do.
Next we'll be looking at and trying to
understand the criticisms of something
known as the
Joint Criminal Liability Doctrine which
started out at
Nuremberg and has been applied in the
international tribunals.
Then we'll be looking at the International
Criminal Court's alternative approach
called The Control
of the Crime doctrine and why that has
created so much controversy in the Hague.
And then finally
we'll be exploring the liability for
incitement to commit genocide.
Let's begin with the Law of Command
Responsibility.
So it all starts with the case of
Yamashita.
General Yamashita was the Japanese general
that was put in
charge of the Phillipine Islands at the
end of World War II.
And, while, the, allies, were starting to
invade the islands, and
cut off his communications, and slowly put
a noose around him so that they would
ultimately capture, the Philippines, his
troops began to
commit, commit the worst atrocities you
can imagine.
And in fact, this, the Sadists of the
Rising Sun,
is a book written about the horrible
things that were committed.
Mass rape, mass murders of civilians,
death marches and so forth.
Well, when they ended up prosecuting
Yamashita, the.
Case went all the way up to the U.S.
Supreme Court.
And the Supreme Court affirmed that he
could
be held responsible under the Theory of
Command Responsibility.
In other words, because he was the
commander, the highest ranking
person there, whatever his subordinates
did, he was ultimately responsible for.
And they ended up.
Confirming his conviction and his death
sentence.
But Justice Murphy, a Supreme Court
justice in
the United States, dissented saying that
nothing in all
history or in international law justifies
such a
charge against a fallen commander of a
defeated force.
To use the very.
Inefficiency and disorganization created
by the victorious forces
as the primary basis for condemning
officers of
the defeated armies bears no resemblance
to justice or to military reality.
So what you can see is there was a big
debate going
on within the U.S. supreme court and the
people who prosecuted Yamashita.
Could you hold him responsible for his
failure to control
his subordinates when part of the reason,
or maybe primarily
the cause of the reason, for his failure
to control,
was that the Allies were so successful in
disrupting his communications?
Ultimately, the court felt that he had
condoned.
A environment, a climate of lawlessness.
And this was why he could be held
responsible.
In other words, in the future, based on
this
precedent, whenever a leader knew, or
should have known
that his subordinates were committing war
crimes or crimes
against humanity, that leader had a
responsibility to either.
Punish those people.
Or to stop those atrocities.
Now, military command is something that
every country has.
In this slide, we see the US command
structure.
It starts with, of course, the highest,
command at the General level.
The Lieutenant Generals, goes down to
Colonels,
Lieutenant Colonels, Captains,
Lieutenants, and even Sergeants.
And at each of these levels.
A commander has De jure which means legal
authority and
effective control over their subordinates
in the chain of command and in each of
these situations whatever happens lower
down can
be held responsible for the person above
them.
And not just the person who has the
immediate
rank above them but all the people on the
chain of command that have authority to
either punish
or prevent the atrocities by the lowest
level of people.
The statutes of the modern international
tribunals starting
with the Yugoslavia Tribunal and the
Rwanda Tribunal,
the Special Court for Sierra Leone and
even
the International Criminal Court, all have
a very similar
clause that says that the fact that crimes
were committed by subordinates Does not
relieve the
superior of criminal responsibility, and
here's the key,
if, the, commander, knew or had reason to
know,
that the subordinate was about to commit
such
acts, or had done so, and the superior
either
failed to take the necessary and
reasonable measures
To prevent such acts or to punish the
perpetrators.
So there's three elements here.
One is a negligence standard that the
commander has
to either know of the crimes, that's the
knowledge standard.
Or have reason to know and that's a
negligence standard meaning that.
He can't have guilty avoidance of
knowledge.
If a reasonable person in his situation
should
have made inquiries then that triggers
that first factor.
The next factor is that the person who's
in command has to
either fail to take necessary and
reasonable measure to prevent such acts.
That doesn't mean they have to do
everything
under heaven and earth to stop these
crimes but.
They should
do what a reasonable commander would do,
that
would have a good likelihood of stopping
these atrocities.
And if that fails, the commander always
has the
responsibility to punish the perpetrators,
because that sends a signal
to the next group that they can't get away
with
those, and that severs this kind of
climate of lawlessness.
That Yamashita was held responsible for.
Now let's look at one of the most
famous modern cases of command
responsibility.
This is the case that was tried by the
Yugoslavia tribunal in the Celebici case.
Celebici was a horrible.
Concentration camp where Bosnian Muslims
were put by the
Bosnian serbs during the height of the
ethnic conflict.
And in this slide you can see how horrible
the conditions were.
Now, they ended up prosecuting three
people in the Celebici case.
They began by prosecuting.
Mister Mucic.
He was the Celebici camp commanders, and
they found him guilty
on the basis of command responsibility,
and sentenced him to seven years.
In other words, because he was commander,
the things that his subordinates did,
including raping
It makes mistreating them, abusing them,
beating
them, starving them, they all were the
responsibility
put at this doorstep.
Now he proved that the didn't order any of
those things,
and he said that he didn't really know
what was going on.
But they said, you're the camp commander
under a negligent standard.
You are imputed to know these things.
Now they didn't give him the greatest
sentence.
They didn't convict him for as long as
they
would if he had committed the crimes
himself or if
he had ordered the crimes but they did
give
him a pretty serious term and that was
seven years.
Now the next person that was tried in the
same case was his deputy, Delic,
he was the deputy camp commander, he was
also someone who was actually very abusive
and
he ends up being convicted for the crimes
that he committed, but on the charge
of command responsibility his lawyer
proved that he
had very little power in that
concentration camp.
In fact, Mucic, his commander, the camp
commander,
was the person who made all the decisions
that
applied to the guards and the lower level
people.
And the deputy camp commander was just
sort of an assistant.
Think about the vice president of.
A country like the United States who
everybody says really doesn't have any
power unless of course there happens to be
a death of a President.
Well that's what Delic was able to
successfully argue.
And then finally there was a man by
the name of Delalic.
He was a very high leader, a sector
commander.
Which meant that he had responsibility for
the
area where this particular concentration
camp was located.
And you would think if you could get the
person who was the commander
of the concentration camp, that you also
ought to be able to get his boss.
You know, maybe the theory was that The
boss
negligently selected or negligently
trained the camp commander or
that he should've been checking in on what
was going on with the camp commander.
But what Delalic was able to convince the
court is that
there were several people at his level and
that his responsibility was
for military actions in the field and that
another sector commander was
responsible for actually supervising the
camp
commanders that were supervising
concentration camps.
So he said he was outside the direct chain
of command and even
though he was a superior and in theory he
could have disciplined Mucic but.
In reality that would have gone through a
different chain and
for that reason Delalic was found not
guilty of command responsibility.
Now this case is a wonderful case for
showing you a couple of principles.
First of all in order to.
Prosecute, successfully, a commander,
under
this Negligent Theory of Command
Responsibility.
You have to show that they have, effective
control of the troops.
There has to be a direct line of authority
between them
and the perpetrators, and each of the
people in this case.
That were acquited.
Were acquited on the basis that they
didn't have
that effective control or that direct line
of authority.
Now let's
go to another case.
this is the case of the Rwanda Tribunal.
And the question there was whether
somebody who was not
a military commander but was the owner of
a tea
shop whose troops his subordinates some
employees went out on
rampages and killed the other ethnic
groups so they were.
Hutus, that worked for him at the tea
shop.
The picture on the bottom is this tea shop
and all the tea that they grow on this
plantation.
And the picture above that is these people
that would go out during breaks or after
work, and they would just be thugs that
would, Just torment the Tutsi population,
and murder them.
And so the question was, could you hold
this, this guy who was just a private
citizen.
A tea factory owner.
For responsibility for what his
subordinates did.
The people that were his employees.
And what the Rwanda Tribunal, which is
shown in this picture.
Did, and you also have the picture.
Of, Mr. Musema here they held him guilty
on command responsiblity they found that
command responsibility doesn't only apply
in military
situations it can also apply to private.
Citizens, when they have
a superior-subordinate relationship, and
they have
the power to appoint or remove people.
And when they know, and in this case, this
person knew that everyday
his subordinates his employees were going
off after work and committing these
atrocities.
In fact.
Sometimes he was there, and he watched
them do that, and he cheered them on.
But that was a different issue in the
case.
But they said he knew this was going on,
and he could've
stopped them easily.
He could've said look, I don't support
what you're doing.
And if you keep doing this, I don't want
you to
return to work as my employee, and that
would've stopped it.
A simple word from him and so the court
found that the same idea of
command responsibility that applies to
military commanders can
also apply to civilians outside of the
military.
context and this was a pretty unusual
case.
I think it's a wake up call for a
lot of people who are civilians, maybe
their mayors
of towns or governors of provinces or in
this
case, they're just local people that own a
business.
If your subordinates are committing
crimes, you
have a responsibility under international
criminal law.
To either prevent them or punish them if
you can.
Now let's look at the next type of
liability
because command responsibilities often
difficult to prove
as you saw in the Celebici case.
You have to prove this effective control.
There's another kind of liability that was
developed.
In the Tadic decision, before the
Yugoslavia Tribunal, which was the subject
of one of my books, a Pulitzer Prize
nominated, book call Balkan Justice.
And, what the case is about is a, fellow
by the name of, Dusko Tadic,
looks a little bit like the actor Dustin
Hoffman when he was young in The Graduate.
So what Dusko Tadic did is he lived
in this area called Prijedor where there
was roughly
the same number of Muslims and Serbs and
Croats in a town near the border with
Serbia.
And this town was the subject of a lot of
ethnic cleansing.
And in addition to having people in the
military
commit atrocities, there would be people
like Dusko Tadic who was a cafe owner.
A karate instructor and a part-time
traffic cop.
And he would get together with his chums,
his little
buddies the people that he would teach to
do karate, and
they would go out and walk the town and
this
is a picture of the town, and they would
beat people.
And so at his trial they did prove that
he on a regular basis would go with his
buddies
into this little town and sort of abuse
the population.
They were cases of rape there were cases
of beatings.
Now there were several people who died
from these beatings but they were unable
to prove that he actually administered the
beatings or even that he was there that.
Particular moment because these guys would
kind of just roam around the town and
nobody was able to say, because the victim
was dead, that yes in fact
Dusko Tadic was there.
So instead of trying to prosecute him on
direct responsibility for the
murders, they said that what he had done
is he had joined a.
Criminal clique, a group of people with a
criminal
purpose and that purpose was to abuse the
population
of ethnic muslims because they were Serbs
and this
was the context of widespread ethnic
cleansing by the Serbs.
ln Bosnia.
Now, the question then was, if he was not
able to be proven to have actually killed
or
abused the particular victims, could he be
held responsible
because his friends and his buddies were
doing this?
And it was reasonably foreseeable that
when they went
around beating people within an inch of
their life that
some people would cross that threshold and
actually die and
so what the court does is they decide to
look
back at the historic Nuremberg president
and at Nuremberg.
Certain people were convicted of quote a
common plan and
in this conviction it included the
forseeable consequences of the plan.
So by using this old Nuremberg president
they were able to apply it against
Dusko Tavic and when they did so they
actually created several levels.
Of this joint criminal liability.
The first level which is called JCE1,
joint criminal enterprise
number 1 is for people who have a common
purpose.
this is the example like where Hitler says
let's go and kill all the
Jews and now all the people who are
working to, to make that happen.
Are going to be held responsible for that
common purpose.
And so, for example, in this picture you
have Hitler with Mein Kampf and you have
Eichmann who was the.
Engineer, if not the architect, of the
final solution and he basically was the
one
who figured out how to get the Jews to the
concentration camps as fast as possible.
He made the trains run even faster in
order
to please Hitler so he could kill as many
people.
In fact at his trial he said one time that
he was very proud of the fact that he was
able to double.
The number of people that they could
transport to the concentration camps, to
the death
camps and that he showed Hitler and got
promoted on the basis of his efficiency.
So in this situation when you have a
leader and you have
someone like Eichmann and they're working
together in this joint criminal
enterprise.
To exterminate all of the Jews then
Eichmann
is going to be responsible not just for
what
he did, making the trains run faster, but
also for what
is going on at the concentration camps,
what's going on in
other areas for everything that's related
to this common purpose and
this is fairly uncontroversial and that
was something that the could apply.
Now the second form of joint criminal
enterprise liability is called JCE2.
It's the systemic form, the so
called concentration camp cases, and here
the very fact that somebody.
Joins up to run a concentration camp.
Be they the camp commander or the deputy
camp commander or a cook or a guard
or someone who just delievers the food or
someone who just brings the
The inmates in and out.
All of those people are working in a joint
criminl enterprise that being the
concentration camp, the death camp.
And as long as they can prove that they
voluntarily
joined to do this or that they had a
choose.
They could have said and this is true
also.
Daniel Goldhagen's book, Hitler's Willing
Executioners actually says
that people who were assigned to be
working at
death camps in Nazi Germany were always
given
the choice if they wanted to go somewhere
else.
Now, the choice
may have been do you want to go to the
Russian front?
And that may not have been such a great
choice, but In this situation as long as
people are voluntary working at a death
camp then
everybody shares responsibility and what
they're doing is basically
imputing a common purpose because you have
to know when you work at the death camp or
a concentration camp where people are
abused that that's
the nature of the activity and that's
fairly uncontriversial
as well.
Now, this comes of course from the
experience of Nazi Germany and in the
case of some of the death camps where
Zyklon gas was used to kill people,
this was then used to prosecute not just
the camp commanders, but all the
people down the chain who were responsible
for the mass killings at these
concentration camps.
Let's look at the
third and in this case, the most
controversially
type of joint criminal enterprise
liability called JCE three.
In this case, it's called the extended
form.
Any perpetrator can be held responsible
for the reasonably foreseeable
consequences of
the other perpetrators if they all were
part voluntarily of the same plan.
Now this is sort of similar to what
in the United States we call the felony
murder doctrine.
in the felony murder doctrine, if two,
people or three people decide to rob a
bank, and let's say in this cartoon
that you're seeing, the getaway driver
says, look.
I'm going to drive the car on part of this
felony.
But you just make sure not to do anything
stupid.
I don't want anybody to be killed in this
operation.
Maybe the agreed to use fake guns.
Or unloaded guns.
But, the two perpetrators
shown here, maybe they changed the gun.
And it was loaded.
And maybe during the heist, they pulled
the trigger and someone dies.
Under those circumstances.
Under felony murder doctrine, not only are
the perpetrators, who
pulled the trigger and killed somebody,
responsible for murder, but also
the getaway driver, because it was
reasonably foreseeable that if
you engage in a bank robbery, that someone
might be killed.
And so,
that doctrine, which is only applied in a
few countries
was adopted by The Yugoslavia Tribunal in
the Tadic case.
And in doing so, they said, we're not
making new law.
They went back to the old Essen lynching
case.
A case tried by a control council law
number ten tribunal, those
were those mini-tribunals that were
established
by the occupying powers after Nuremberg.
And those
tribunals applied the Nuremberg precedent.
So, in this case also known as Murdered by
the Mob, what happened was.
In 1944, a bunch of British airmen,
landed, in this area,
and, they were captured by the Germans,
and they were paraded
through the town, and while they were
going through the town,
the commanding officer, a German captain,
was heard by everybody to say.
To his subordinates, you know these guys
deserve what's coming to them and if the
crowd wants to mess with them and molest
them, let them do it without interfering.
Well the crowd heard this and they began
to attack.
The people.
They threw stones at' em.
In one case, they threw one off a bridge.
And ultimately, the, British airmen were
killed.
Now, you could prosecute, of course, the
commander.
Because, in a way, he incited this.
But could you also prosecute all of the
guards who happened to be there?
They said you could.
Because it was reasonably foreseeable
under these circumstances that there would
be injuries if not death.
And so they held all the German soldiers
jointly responsible for murder and the.
Tadic decision of the Yugoslavia Tribunal
which occurs in 1998, looks back to this
old precedent from the Nuremberg age and
says we're
not creating new law, we're just applying
the
precedent of Nuremberg, updating it to
this new age.
You can see that JCE 3 as I said
was controversial and it's going to be
subject some
criticisms, the first of which is that
it's basically
guilt by association, what the defense
council say in cases
where their clients have been charged with
joint criminal enterprise three is that
JCE doesn't stand for joint criminal
enterprise it stands for just convict
everyone.
They say this is the magic bullet the
prosecutor has and
there is no way that we can get our
clients off.
Because if you can prove that as a
prosecutor that the
clients that the defendants were part of a
group of people.
That had the intend to do something
criminal.
And that could be a very vast group.
It could be anybody who is in a
paramilitary group.
Anybody who is in the military if the
military itself is committing atrocities.
And so if you can prove that, then you can
hold each and every one of them
responsible for the reasobable.
Forseeable consequences of that group
criminality.
And that is
really something that makes it difficult
to defend.
Now another one of the criticisms is that
in effect what you're
doing is you're applying the American or
British version of conspiracy law.
This is the crime that says if you join
together.
And act jointly in an agreement to do
something criminal
that all of you can be held responsible
for the consequences.
Now that's not controversial
in the United States and Britain but many
countries do not apply conspiracy law.
It's really a uniquely British and
American conception and at Nuremberg
this was one of the problems the U.S.
tried to apply conspiracy.
And the Nuremberg Tribunal was not
comfortable with
it, especially since the French judge and
the
Russian judge were from countries that
didn't have
conspiracy, they pruned it back and they,
they would
not allow a full conspiracy charge to go
forward.
So the argument here is that JCE is just
conspiracy, disguised and
given another name and that's not right to
apply in a international
tribunal since almost every country in the
world does not recognize this
vast notion of conspiracy, so we'll put a
little cross through that.
A third, one of these things that comes up
is something that came by the special
tribunal for Lebanon.
Now this is the tribunal that was created
by the UN and the Lebanese government
to prosecute the people who were
responsible for
the assassination explosion of the former
prime minister
of Lebanon, Mr. Harari and 24 other people
that were killed that day and I, in
last session I showed you pictures of the
crater that was caused by that explosion,
now.
The tribunal's appeals chamber had an
early decision
where they were trying to figure out what
forms of liability should
apply to this crime of terrorism before
their court, and they said
that JCE 3, which is, again, it's holding
someone responsible for the
reasonably foreseeable consequences of the
joint
criminal enterprise, that that's a
negligence standard.
You're basically saying that if it's
reasonably foreseeable, they didn't
order it, they didn't commit it, they
didn't even
know for sure that it was going to happen.
It was just something that might be likely
to happen, and therefore a reasonable
person would know.
That is could happen.
Now the problem with applying a negligent
standard to the crime
of terrorism, they said, was that
terrorism is a specific intent crime.
Remember in the last session where we.
Wrestled with definition of terrorism.
And we talked about the definition that
this tribunal came up with.
The definition of terrorism that the
Lebanon Tribunal
applies says that it has to be a criminal
act, and it has to be for for the specific
intent to instill fear in a population.
And since the crime requires a specific
intent, then merely being negligent is not
sufficient.
You have to have this actual intent.
And for that reason the
appeals chamber said JCE-3 does not apply
here.
Finally, the Cambodia Tribunal, which is a
tribunal
that is prosecuting the leaders of the
Khmer
Rouge for crimes that were committed in
1976
to 1979 in Cambodia, the killing fields
atrocities.
This tribunal had to decide whether joint
criminal enterprise
1, 2, and 3 should apply to the Khmer
Rouge
leaders that were under prosecution.
And the problem for them is that they
could not
apply the Tadic precedent, which has also
been used in the
Rwanda Tribunal and the Special Court for
Sierra Leone, because their
crimes, that they were looking at,
predated the 1998 Tadic decision.
These were crimes from 1976.
So the question had to be, what was
clearly.
A mode of criminal liability in 1976, that
the perpetrators should have known?
And they looked at joint criminal
enterprise
number one, you know, if everybody has the
same intent, the same purpose then you're
responsible
for what happens and they said that's
fine.
They looked at joint criminal enterprise
number two, the
concentration camp situation and they said
that was clear.
But when they looked
at joint criminal enterprise number three
and
they looked at just the Essen Lynching
case.
They said, you know it's not so clear to
us that that is the state of the law.
It didn't come from the Nuremberg Trial
itself.
It was from one of the mini Nuremberg
subsequent trials.
And, if you look at the case, it's just a
very scant record.
You don't really know what was being
applied.
So they chose not to apply joint criminal
enterprise liability, number three.
And what you're seeing is happening here,
is that, this
kind of liability, which is based again
on, on the US.
Felony murder doctrine is so broad and
alien to many countries that
they're just not comfortable with it, and
so they have decided that
in the Cambodia proceedings they will not
hold people responsible under this
very expansive third theory of the
extended form of the joint criminal
enterprise liability.
There is something else going on in the
world, and that is
that the International Criminal Court,
which
was established after the Tadic decision.
It's made up of judges mainly from civil
law countries, as opposed to common law
countries.
This is a map of the world.
Common law are those countries like the
U.S. and the U.K.
Canada, Australia, and a couple of, former
colonies of the U.K.
and Africa, that apply the adversarial
approach, to criminal law.
Civil law countries apply the civil law
inquisitorial approach, to criminal law,
that came from.
The Napoleonic code and has been applied
to almost every country in the world.
When the judges were elected to the
international criminal, court most of
them were from the civil law tradition,
not the common law tradition and
what's going on in the Hague is there is
literally.
A Darwinian struggle to see whether the
common
law, or the civil law, will be supreme.
And one of those places that this struggle
has come to head
is in the question of whether
joint criminal enterprise liability ought
to apply.
And what the civil law countries are
looking
at as an alternative is something that the
German.
Government, has been applying, called the
control theory.
And in the case called Lubanga, the
International Criminal Court decided
to apply this alternative approach, to the
liability of Mr. Lubanga.
He was a paramilitary general, in the
Congo.
He was accusing of recruiting and using
child soldiers and abusing these people.
And the question was what type of
liability
would they apply and the prosecution
wanted to
apply joint criminal enterprise liability
and so instead
the court, these are the three judges in
the case, they decided to apply the
control theory.
This is a theory that was developed by
a scholar in Germany, named Claus Roxin,
and it
was first applied in the German border
guard cases
right after their unification of East and
West Germany.
And those were cases against the East
German
border guards that murdered lots and lots
of people
who tried to cross over the fence into
freedom, into democracy, into what was
then West Germany.
Now.
In this case, they held the accused guilty
under the control theory.
And what the control theory requires is
that
there has to be proof that the position.
Of the perpetrator in the common plan is
so essential that if his
non-performance of his assigned tasks were
to occur, it would cause the plan.
So, in other words, the person has to be
the lynch pin to the success of the
operation.
If you pull his pin out.
The, I don't know if I'm mixing metaphors,
but the
the house of cards would fall and nothing
would work.
And that's what's required
for the control theory.
Now you could see this is a lot harder to
prove than joint
criminal enterprise, where you can just
convict
everyone as the defendants happen to say.
So although Judges Benito and Blattmann
adopted the control theory, Judge
Fulford said this theory has to be
rejected because It's uniquely German.
It's not something that has been applied
in international criminal tribunals
before, and it creates an insurmountable
problem, for ICC, International Criminal
Court Cases.
Now this is the first case.
Where this has come up in the
International Criminal Court.
It is likely to come up now in every case,
there's
already been one where's there's been a
dissent by judge Christine Van
den Wyngaert from Belgium, on the same
grounds as judge Fullford,
and what your seeing is, this is that
Darwinian struggle in the
International Criminal Court, will it be
The
common law, joint criminal enterprise
doctrine, or
is it going to be the civil law, uniquely
German control doctrine that will emerge?
And this is something that will have to
stay tuned but it's important at
this point that we understand and why
there is such a fight over them.
Now let's look at a completely different
crime and that is the crime of incitement
to commit genocide in other words words
that kill.
The crime of incitement.
Was one of those crimes that was
prosecuted at Nuremberg.
One of the defendants at Nuremberg was
Julius Streicher.
He was the publisher of the anti-Semetic
German weekly, called Der Sturmer.
And in this weekly he would have cartoons
or stories that demonized the Jews.
And over time His propaganda through a
private
newspaper was really responsible for some
of the hatred and
virulent anti-Semitism of the German
people that came to a head.
In the final solution, and in all the
other atrocities in Germany.
So he stands trial, together with the
other
22 ranking Germans, who were at the
Nuremberg tribunal.
And the charge against him was that he had
incited to mass
murder Europe's Jewish population.
He was found guilty.
Now taking this old precedent, The
International Criminal Tribunal for
Rwanda wanted to apply it to several cases
involving the media in Rwanda now.
Let me give you some background again of
what was going on.
The year was 1994.
In Rwanda you had two ethnic groups, the
Tutsis and the Hutus.
The Hutus decided to systematically
eliminate the Tutsis.
And as part of this widespread massacre,
were 800,000 Tutsis.
Almost 2 3rds of their entire population
was wiped out in four short months.
The radio stations played a huge role
because the Tutsis
weren't just killed by the military they
were killed by
like the tea factory operators that I
showed you earlier
in the session and the reason they did
this and
how they were able to do this is because
people on their radio would say.
Go out and kill the cockroaches, and they
would tell
them where there were people that would be
subject to it.
So, in the Rwanda Tribunal, the big trial
was the media trial, where
they were prosecuting people for
incitement to commit genocide.
The requirement for this
crime is that it has to be direct and
public incitement.
It cannot be indirect and it cannot be
private.
And let's test what that means.
Let's say you have someone who's a radio
personality in Rwanda, and he
gets on the radio or he gets in a studio
and he starts to create these.
Tapes, in which he's really urging his
fellow Hutus to go out and murder.
And he gives them justification for it.
So here's a cassette that he makes, it's
called Kill the Cockroaches.
And cockroaches was, in Rwanda, the code
word that the
Hutus used for the Tutsis when they were
inciting the population.
So, the first question is, what if he
makes this tape And the tape is
intercepted before it can be broadcast.
Is it directed public if it was merely
an effort that failed to incite genocide?
And
the second question I want you to ponder
is what if the tape is broadcast but
nobody immediately Jumps down and runs
around and starts killing people.
What if it takes, you know, a couple of
days, or even a couple of weeks?
And yet, when the people actually die, one
of the
things that comes to light is that they
were motivated
in part by the things that this radio
personality had said.
But its, its, takes too long.
What if nobody's killed right away.
Is that direct incitement?
Now, the international tribunals have
looked at this.
And they have decided that, incitement is
what is known as an inchoate crime.
It means that, the proof of the result is
not necessary for the crime to have been
committed.
Only that the perpetrator.
Meant for that result to occur.
And that there was potential, in what
the perpetrator did to bring about that
result.
And so, it is the intent of the speaker
that matters.
Not the effectiveness of the speech.
In other words, in our hypothetical, the
perpetrator would be
held responsible for making the tape, even
if it was intercepted.
And nobody committed genocide, or even if
it took awhile for it to have it's effect.
And it was harder to prove the direct link
between the statements and hte genocide.
As long as you could prove that the intent
of the perpertrator was to get people to
commit genocide.
And that could be proven circumstantially
by simply listiening to the tape.
Now one of the things that's interesting
in the media trial is that
they didn't just prosecute the hate radio
speakers who spoke in code but they could
figure out the code they also prosecuted a
rock star for songs that were anti.
Tutsi and that brings us to the question
of
what's the difference between hate speech
and incitement to genocide?
And this is an important difference
because hate speech is not
an international crime there are countries
that on the domestic level.
Will, will make it a crime but it's not
an international crime, it is not part of
genocide.
It has to rise to the level of incitement
to be genocide.
So what's the difference?
The Rwanda Tribunal in the media case
emphasized that incitement requires
a calling on the audience to take action
of some kind.
If you can't show that the words Were a
call for action.
In the US
we say that it has to create a clear and
present danger of action.
If you can't prove that, then inflammatory
language is only going to
be considered hate speech and not
an international crime of incitement to
genocide.
Now let me end with this really
interesting hypothetical question.
Iranian President Ahmadinejad has made a
number of public speeches calling for
the destruction of Israel, and in many of
these speeches he is very explicit about
saying that
the people in the Middle East need to make
sure that the Jews are wiped off the map.
So here's you know a picture of him making
such speeches.
During the presidental debates and and
campaigns a in the United States.
Republican candidate Mitt Romney
made the point that Ahmadinejad should be
charged in the
United States with direct and public
incitement to commit genocide.
Now remember genocide is a universal
jurisdiction crime and in the United
States we actually have in my country a
statue that says that anybody.
Who commits genocide as defined in the
convention can
be prosecuted in US court and the
convention defines
genocide as including incitement which is
what we've been talking about.
So the question Mitt Romney raises is when
Ahmadinejad comes to visit
the United States to give speeches at the
U.N. or at colleges should
U.S. government officials law enforcement
officers grab him.
If, you know, he would be then
charged with incitement to commit genocide
from his speeches.
And part of the answer is you can not do
that when he's at the UN.
The UN has a special treaty with the
United States so that people can go
there and say whatever they want, and they
have full immunity while they're at the
UN.
But he also went, I believe, to Princeton
University and gave a speech where he.
Repeated many of these statements and the
question then is, if he went so far as to
commit incitement why shouldn't he have
been grabbed and prosecuted?
And what you'd have to do is actually read
his
statements and apply the standard that
we've been talking about.
Was there a direct call for action?
In his statements, or was it more indirect
or even just merely hate speech.
So it's a great hypothetical for exploring
the
contours of this unique crime, incitement
to commit genocide.
So today we've looked at four different
unique theories
of criminal responsibility that applied to
international trials and to
international criminal law crimes we
looked at the law
of command responsibility we looked at
joint criminal enterprise liability.
We looked at the international criminals
courts alternative, control of the crime
theory.
And finally we've talked about this
very special crime, incitement to commit
genocide.
And I think what you've seen is that
international criminal law
doesn't just have unique Crimes as we've
seen in the last
few sessions but it also has unique modes
of liability and
that's part of what makes it a a very
interesting and complicated.
Area of law.
And, it, creates certain challenges for
the defense and, if, I think
if you get the sense from all of these
that it's harder to
win, as a defendant, in an international
criminal law, case than it
would be in a domestic case, because of
these broad theories of liability.
And quite honestly, that was designed by
the drafters.
Of these tribunals and the laws.
The, the law does seem to be slanted
against
the perpetrators, and the rational for
that is that
the group responsibility is so hard to
prove under regular
domestic theories of liability that they
had to arm the
prosecution with these extra things to
level the playing field.
But the question of course is, have they.
Unleveled the playing field?
If you are a criminal defendant what are
your chances really of being
able to escape liability.
In the next class session we're going to
look at specialized defenses.
These are things that were created.
For the defendants applicable to
international criminal law.
But there are also some of these defenses
that, like the theories of liability, have
over time
been sort snipped at the bud in order
to make it easier to prove the
prosecution's case.
And so one of the I guess
themes of this course that we're starting
to look at
and we'll see throughout the rest of the
sessions, is
whether international criminal law, which
has been developed to Try
to hold perpetrators accountable for mass
atrocities is really fair.
Until next time, go and do the online
readings and I'll look forward to seeing
you.
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