Academic journal article Australian International Law Journal

Secondary Forms of Genocide and Command Responsibility under the Statutes of the ICTY, ICTR and ICC

Academic journal article Australian International Law Journal

Secondary Forms of Genocide and Command Responsibility under the Statutes of the ICTY, ICTR and ICC

Article excerpt

ABSTRACT

This article examines the ways in which secondary forms of genocide and command responsibility have been integrated into the statutes of the ICTY, ICTR and ICC. These secondary forms of genocide are namely: conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. The integration of the Genocide Convention into the statutes of the ICTY and ICTR and the overlaps of these provisions with those pertaining to general individual criminal responsibility have given rise to some confusion in the jurisprudence regarding the appropriate application of these provisions. Nonetheless, the decisions of the ad hoc tribunals have overcome the difficulties inherent in their statutes, and, as a result, the case law has contributed significantly to the development of customary international law in relation to both secondary forms of genocide and command responsibility for secondary forms of genocide. These developments, however, are not recognised in the provisions of the Rome Statute. Furthermore, although it may be regarded as an attempt to normalise the crime of genocide in international law, the omission in the Rome Statute of parts of the Genocide Convention leads to substantial and possibly insurmountable inconsistencies between the Rome Statute and customary international law.

Part One - Prior to the Rome Statute

A. Introduction

While there is a substantial volume of academic commentary on, and judicial consideration of, the history and development of the crime of genocide in international law, the implementation of certain provisions of the Convention of the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention) (1) creates a degree of uncertainty regarding the appropriate application of these provisions. These concerns arise with the integration of the Genocide Convention into the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY), (2) the International Criminal Tribunal for Rwanda (ICTR) (3) and, more recently, the International Criminal Court (ICC) (4), and their prosecution of activities that may be regarded as secondary forms of genocide. For the purposes of this paper, these 'secondary forms' of genocide are conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. Additional concerns arise because, while the Genocide Convention makes no mention of the concept of superior or command responsibility, the statutes of the ICTY, ICTR and ICC all contain provisions that criminalise command responsibility for genocide.

The first part of this article examines the statutes of the ICTY and ICTR in relation to these matters, as well as any relevant judicial consideration that has been given to these provisions by those ad hoc tribunals. The second part considers the mechanics of the Rome Statute of the ICC, specifically in relation to the interaction of the articles relating to 'Genocide' (article 6, Rome Statute), 'Individual criminal responsibility' (article 25, Rome Statute) and the 'Responsibility of commanders and other superiors' (article 28, Rome Statute, commonly referred to as 'command responsibility'). Significantly, there have been no proceedings before the ICC as yet that have presented the Court with the opportunity to evaluate, in detail, the nature of the interaction of these provisions. This article outlines and evaluates a number of differences that exist between the relevant provisions of the statutes of the ICTY, ICTR and ICC. It also considers potential arguments that could be raised to counter any possible indictments before the ICC that rely on a combination of the articles relating to secondary forms of genocide and command responsibility.

B. The Relevant Provisions of the Genocide Convention and the Statutes of the ICTY and the ICTR

Before the adoption of the Rome Statute in 1998, the statutes of the ICTY and the ICTR contained the most relevant and comprehensive provisions for the prosecution of acts of genocide in international criminal law. …

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