Crime of genocide
|Crime of genocide|
|The prohibition of genocide applies to States and individuals, and it extends to operations and activities in cyber space. While individuals may be held criminally responsible for genocide under Article 6 of the Rome Statute, the provision replicates the definition of the crime of genocide contained in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’), which is widely considered to be authoritative. It consists of two elements: the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, and at least one of the requisite acts included in the exhaustive list in Article II.
Article 25(3)(e) of the Rome Statute further provides that a person may be criminally responsible for directly and publicly inciting others to commit genocide. Based on the Genocide Convention, a Trial Chamber of the International Criminal Tribunal for Rwanda defined direct and public incitement to genocide “as directly provoking the perpetrator(s) to commit genocide” through various means, including “audiovisual communication”. It further explained that the “mens rea required for the crime of direct and public incitement to commit genocide lies in the intent to directly prompt or provoke another to commit genocide”, which implies that the perpetrator himself or herself intends to commit genocide. Direct and public incitement to genocide is punishable even if it is unsuccessful.
Notes and references
- ↑ On this “dual regime of responsibility for genocide” see Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (3rd rev ed, OUP 2013), 112 (interpreting the ICJ’s findings in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment,  ICJ Rep 43, paras 163 and 173).
- ↑ See Marco Roscini, ‘Gravity in the Statute of the International Criminal Court and Cyber Conduct that Constitutes, Instigates or Facilitates International Crimes’ (2019) 30 CrimLF 247, 250.
- ↑ Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.
- ↑ See Florian Jeßberger, ‘The Definition and the Elements of the Crime of Genocide’, in Paola Gaeta (ed), The UN Genocide Convention: A Commentary (OUP 2009) 87, 88.
- ↑ Those acts are: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.
- ↑ See also the cases of Prosecutor v Ruggiu (Judgement and Sentence) ICTR 97-32-I (1 June 2000), and Prosecutor v Nahimana (Media Case) (Judgement and Sentence) ICTR 99-52-T (3 December 2003).
- ↑ Prosecutor v Jean-Paul Akayesu (Judgement) ICTR-96-4-T (2 September 1998) .
- ↑ Ibid, para 560.
- ↑ Ibid, para 562.