Secondary forms of genocide and command responsibility under the statutes of the ICTY, ICTR and ICC.

• Author: Petrosian, Tahlia
• Position: International Criminal Tribunals for the Former Yugoslavia and Rwanda, International Criminal Court

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

1. 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.

2. 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. This was primarily due to their adoption, in full, of articles II and III of the Genocide Convention. (6) Both statutes went one step further by introducing the concept of command responsibility for acts of genocide. It appears that at the time of the drafting of the Genocide Convention, the possibility of a commander being held responsible for genocide had not been considered. (7)

   Article 4(3) of the statute of the ICTY and article 2(3) of the statute of the ICTR reproduce article III of the Genocide Convention. Articles 7(1) and 7(3) of the statute of the ICTY and articles 6(1) and 6(3) of the statute of the ICTR address forms of responsibility. These articles are identical in both statutes. The relevant provisions from the statute of the ICTY are as follows:

   Article 4: Genocide

   ...

   3. The following acts shall he punishable:

      (a) genocide;

      (b) conspiracy to commit genocide;

      (c) direct and public incitement to commit genocide;

      (d) attempt to commit genocide;

      (e) complicity in genocide.

      ...

      Article 7: Individual criminal responsibility

   1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

   3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or bad done so and the superior failed to take the necessary' and reasonable measures to prevent such acts or to punish the perpetrators thereof. (8)

      1. Article 4(3) - the Genocide Provisions

      In examining first the provisions on genocide in article 4(3), the question raised is whether the activities outlined in subparagraphs (b)-(e) of article 4(3) constitute crimes in and of themselves, or whether they are forms of responsibility for the more general crime of genocide.

      It is asserted by the majority of commentators that the first three of these four activities -conspiracy to commit genocide, direct and public incitement to commit genocide and attempt to commit genocide--are generally understood as inchoate crimes and not forms of responsibility. (9) The case law on this point is also clear, with the ICTY recognising the 'inchoate offences relating to genocide' as 'conspiracy, direct and public incitement and attempt', (10) and the ICTR staring that inchoate offences ... are punishable only for the crime of genocide pursuant to article 2(3)(b), (c), and (d) (of the statute)'. (11) As inchoate offences, these actions constitute crimes in and of themselves and the commission of these acts in itself, without genocide necessarily occurring, is sufficient for grounds of criminal liability. This notion can be contrasted with the concept of forms of responsibility, which are not themselves punishable but are ways of attributing criminality to a person in relation to the commission of certain acts and the possession of the relevant mental state.

      The status of subparagraph (e) of article 4(3) - complicity in genocide--is different. (12) The case law strongly suggests that, unlike the other activities outlined in article 4(3), complicity in genocide is a form of responsibility and its successful prosecution does indeed rely on a finding that genocide occurred. The ICTY has confirmed on several occasions that complicity in genocide is a form of liability for the crime of genocide and not a crime in and of itself, (13) and this has been supported by judgments of the ICTR. The Trial Chamber of the ICTY in Prosecutor v Radoslav Brdanin (14) stated that 'genocide and complicity in genocide are two different forms of participation in the same offence'. (15) This finding was further supported in Prosecutor v Blagopjevic and Jokio (16) and by the ICTR in Prosecutor v jean-Paul Akayesu. (17)

      As an accused cannot be convicted of both the principal offence of genocide and of complicity in genocide in relation to the same set of facts, (18) the charge of complicity in genocide has not proven particularly significant, since, in the case law of the ad hoc tribunals, persons who are found guilty of complicity in genocide have generally been convicted as perpetrators of genocide. (19) In fact, relatively few chambers of either of the ad hoc tribunals have examined complicity in genocide in detail, including how it relates to other provisions under the relevant statutes. This is in part because prosecutors at both tribunals adopted a tendency to charge complicity in genocide as an alternative to genocide once the judgments of the tribunals began to suggest that a successful prosecution for complicity rested on finding that genocide had taken place. (20)

   2. Article 7 - the Provisions on Individual Criminal Responsibility

      There is a degree of overlap in the provisions of the ICTY and ICTR statutes in that they incorporate the provisions of article III of the Cenovidv Convention within the definition of the crime of genocide (article 4 (ICTY) and article 2 (ICTR)) and also contain a general provision addressing criminal participation (article 7 (ICTY) and article 6 (ICTR)). Several commentators have explained this overlap as resulting from inadvertence on the part of the drafters of the documents, or as an 'innocent consequence of the verbatim incorporation' (21) of article III of the (Genocide Convention into the statutes.

      Nonetheless, the result is a not insubstantial level of judicial and academic uncertainty in at least three areas: (i) the relationships and distinctions that may exist between charges laid solely under article 4(3) or under a combination of article 4(3) and article 7(1); (ii) the possibility of a broadening of...