CYIL vol. 14 (2023)

AVITUS A. AGBOR CYIL 14 (2023) and argued that the involvement of the masses would not be possible without direct and public incitement to commit those crimes. 13 2.3 Overlapping provisions and the doctrine of concursus delictorium In view of the provisions on criminal responsibility (with emphasis on instigation as one of the modes of participation) and the inchoate crime of direct and public incitement to commit genocide both of which are contained in the Statutes of the ICTY and ICTR, one can make some pertinent observations: first, as held by the Trial and Appeals Chambers of the ICTR and ICTY, the words “instigation” and “incitement” can be used interchangeably. Secondly, words or gestures that may qualify as instigation as a mode of participation under criminal responsibility is much wider given the fact that such participation should have led to any of the stages of any of the crimes over which the Tribunal had jurisdiction. The jurisprudence of the Trial and Appeals Chambers of the ICTR tells us that for criminal responsibility to be imposed, it must be established that the accused’s mode of participation was a substantial contribution to the commission of the crimes over which the Tribunal had jurisdiction. 14 Even though this substantial contribution requirement has been debunked in legal scholarship, that stands as the current law thereon until that position is reversed by a Trial or Appeals Chamber. On the other hand, the inchoate crime of direct and public incitement to commit genocide is limited to the crime of genocide only. Thirdly, there is the possibility of same words and gestures that qualify as instigation as a mode of participation to amount to direct and public incitement to commit genocide. Whether that it is procedurally fair and sound to resort to such a practice has been resolved by the jurisprudence of the Trial and Appeals Chambers: the current case-law answers this in the affirmative, holding that it is permissible to use the same facts to constitute different charges. Known as concursus delictorium , the Trial and Appeals Chambers have consistently held that it is a procedurally fair practice, and resonates with sound logic, to institute multiple charges on an accused using the same set of facts. With regards to the judgments delivered by the Trial and Appeal Chambers of the ad hoc tribunals on the issues of instigation as a mode of participation and direct and public incitement to genocide as a punishable and inchoate crime, it can be argued that the jurisprudence remains commendable, valuable and insightful for a few reasons: first, it outlined the constitutive elements (both material and mental) of instigation as a mode of participation and direct and public incitement to commit genocide as an inchoate crime. Secondly, the judgments have delineated them in the context of mass atrocities, evoking the sentiments and wordings of the IMT, Nuremberg, where Streicher was convicted for 13 The Prosecutor v Jean-Paul Akayesu , Judgment, Case No. ICTR-96-4, T. Ch. I, 2 September 1998, paras 550-551. 14 The Prosecutor v Jean-Paul Akayesu , Judgment, Case No. ICTR-96-4, T. Ch. I, 2 September 1998, para 477; The Prosecutor v Clément Kayishema and Obed Ruzindana , Judgment, Case No. ICTR-95-1-T, T. Ch. I, 21 May 1999, paras 199–207; The Prosecutor v Alfred Musema , Judgment, Case No. ICTR-96-13-T, T. Ch. I, 27 January 2003, para 115; The Prosecutor v Ignace Bagilishema, Judgment, Case No. ICTR-95-1-A, T. Ch. I, 7 June 2001, paras 30, 33; Clément Kayishema and Obed Ruzindana v The Prosecutor, Judgment, Case No. ICTR-95-1A, Appeal Chamber, 1 June 2001, paras 186; The Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Judgment, Case No. ICTR-96-17-T, T. Ch. I, 21 February 2003, para 787; The Prosecution v Laurent Semanza , Judgment, Case No. ICTR-97-20, T. Ch. II, 15 May 2003, para 379; The Prosecutor v Juvénal Kajelijeli , Judgment, Case No. ICTR-96-44-T, T. Ch. II, 1 December 2003, para 759; The Prosecutor v Callixte Kalimanzira , Judgment, Case No. ICTR-05-88-T, T. Ch. III, 22 June 2009, para 512; and The Prosecutor v Idelphonse Hategekimana , Judgment, Case No. ICTR-00-55, T. Ch. II, 6 December 2010, para 644.

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