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, for example, under the statutes for the International Criminal Tribunals for the Former Yugoslavia (ICTY) 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 genocidal acts. In general, both public and private individuals are punishable under 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 Article 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 Article 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 refers to when someone directly and publicly encourages others to commit genocide. It has to be a clear and direct call to action, rather than a vague or indirect suggestion. The level of directness is judged based on the context and audience it was intended for. Even if the incitement is not obvious to outsiders, it can still be considered direct as long as the intended audience immediately understands the message. The level of directness must be clear and unambiguous in its intended context.

[Last updated in January of 2023 by the Wex Definitions Team]