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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).