Instigation to Crimes against Humanity

Copyright

Dedication

Contents

Acknowledgement

List of Statutes

List of International Instruments

List of Cases

Foreword

Preface

1. Introduction

2. A Synopsis of the Problematic Jurisprudence of the Trial and Appeal Chambers of the ICTR

2.1 Introduction

2.2 Synoptic Statement of the Problematic Jurisprudence of the Trial and Appeal Chambers of the ICTR

2.3 Central Arguments

2.4 Conclusion

3. The Jurisprudence of the ICTR on Instigation as a Mode of Participation

3.1 Introduction

3.2 Instigation as an Inchoate Crime Under Common Law

3.2.1 Actus Reus of Instigation

3.2.2 Mens Rea of Instigation

3.3 Instigation as a Mode of Participation in International Criminal Law

3.3.1 The Nuremberg Charter and the Julius Streicher Legacy

3.3.2 Post-Nuremberg Developments

3.3.3 The United Nations’ Ad Hoc Tribunals

3.3.4 The Rome Statute of the International Criminal Court

3.3.5 The Statute of the Special Court for Sierra Leone (SCSL)

3.4 The Ingredients of Instigation

3.4.1 Instigation Comprises Speeches, Words, Gestures

3.4.2 Instigation Implies a Suggestion that the Crime must or Should be Committed

3.4.3 Instigator must Intend or Have Knowledge that the Crime will be Committed

3.4.4 The Instigation must Substantially Contribute to the Commission of the Crime

3.5 Applying the Ingredients of Instigation to ICTR Case-Law

3.5.1 The Trial Chambers’ Jurisprudence on Instigation

3.6 The Free Speech Argument

3.6.1 The Meaning and Evolution of the Right to Free Speech

3.6.2 The Right to Free Speech in International Law

3.6.3 The Limits to Free Speech in International Law

3.6.4 The Trial and Appeal Chambers’ Guidelines

3.7 Conclusion

4. The Constituent Elements of Crimes Against Humanity under the Statute of the ICTR

4.1 Introduction

4.2 An Outline of the Evolution of Crimes Against Humanity

4.2.1 The Concept of Crimes Against Humanity before World War Two

4.2.2 The Allied Powers’ Formulations on Crimes against Humanity

4.2.3 The Work of the United Nations War Crimes Commission and International Law Commission

4.2.4 The Statutes of the United Nations’ Ad Hoc Tribunals

4.2.5 The Rome Statute of the ICC

4.3 The Definitional Elements of Crimes Against Humanity Under the Statute of the ICTR

4.3.1 The Attack

4.3.2 There must be a Widespread or Systematic Attack

4.3.3 The Crime Committed by the Accused must be within, Part or in Furtherance of the Widespread or Systematic Attack

4.3.4 The Attack is Directed Against any Civilian Population

4.3.5 The Attack must be Discriminatory in Nature

4.3.6 The Mens Rea of Crimes Against Humanity

4.4 Conclusion

5. Critiquing the Trial and Appeal Chambers’ Construction of Instigation to Crimes Against Humanity under Article 6(1) of the Statute of the ICTR

5.1 Introduction

5.2 Construction of Article 6(1)

5.2.1 Instigation Under the Statute of the ICTR

5.2.2 The Trial and Appeal Chambers’ Jurisprudence on Instigation Under Article 6(1)

5.3 Changing the Approach to Construing Article 6(1)

5.3.1 The Bifurcated and Inchoate Character of Article 6(1) of the Statute of the ICTR

5.3.2 The Intersection Between Articles 6(1) and 2(3)(c): The ‘Kalimanzira Principles’

5.3.3 Debating the Inchoateness of Article 2(3)(c) Within the Rwandan Context

5.3.4 Joint Criminal Enterprise Approach

6. Beyond the Statute of the ICTR: Instigation as a Mode of Participation in Crimes Against Humanity

6.1 Introduction

6.2 Appraising the Jurisprudence on Instigation

6.3 Instigation Under the Rome Statute of the International Criminal Court

Bibliography

Index