CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ

PROSECUTING „HATE SPEECH“ AT THE IMT, NUREMBERG …

2.5 The Tribunal’s legacy on the prosecution of instigation as a mode of participation In the post-Nuremberg trials era, Streicher stands out as that individuals whose name does not fail to feature in any discussion related to hate speech that results in mass atrocities. In fact, his criminal participation would influence the way the Genocide Convention would be drafted, with the inclusion of other punishable acts such as direct and public incitement to commit genocide. 55 T he Travaux Préparatoires leading to the adoption of the Genocide Convention reveal the concerns and contentions of the delegates thereto. The Trial Chamber of the ICTR in The Prosecutor v Jean-Paul Akayesu restated this historical development when evaluating the critical role played by instigators: At the time the Convention on Genocide was adopted, the delegates agreed to expressly spell out direct and public incitement to commit genocide as a specific crime, in particular, because of its critical role in the planning of genocide, with the delegate from the USSR stating in this regard that “It was impossible that hundreds of thousand of people should commit so many crimes unless they had been incited to do so and unless the crimes and unless the crimes had been premeditated and carefully organized. He asked how in those circumstances, the inciters and organizers of the crime could be allowed to escape punishment, when they were the ones really responsible for the atrocities committed. 56 Over time, numerous international legal instruments have recognised instigation as a mode of participation, 57 and an inchoate crime that would attract criminal liability if that incitement was direct, public and for the commission of genocide and irrespective of whether the said instigation actually resulted in the commission of the crime of genocide. 58 Likewise, a vast and insightful jurisprudence has been developed on the issue of hate speech in the context of mass atrocities, for which the Trial and Appeal Chambers of the two ad hoc Tribunals have received enormous credit. Streicher’s name, or the way he participated, would still guide legal analysis within the context of hate speech that fomented the planning, preparation or commission of mass atrocities. 55 Genocide Convention, Article 3(c). 56 The Prosecutor v Jean-Paul Akayesu , Judgment, Case No. ICTR-96-4, T. Ch. I, 2 September 1998, para 551, citing the Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September– 10 December, I948, Official Records of the General Assembly, statements by Mr. Morozov, p. 241. 57 See, for example, the Rome Statute of the International Criminal Court, Article 25(3)(e) and the Statute of the Special Court for Sierra Leone, Article 6(1). 58 A few cases to illustrate this point include the following: The Prosecutor v Jean-Paul Akayesu , Judgment, Case No. ICTR-96-4, T. Ch. I, 2 September 1998, para 562; The Prosecutor v Georges Rutaganda , Judgment, Case No. ICTR-96-3-T, T. Ch. I, 6 December 1999, para 38; The Prosecutor v Alfred Musema , Judgment, Case No. ICTR 96-13-T, T. Ch. I, 27 January 2003, para 120; The Prosecutor v Eliézer Niyitegeka , Judgment, Case No. ICTR-96 14-T, T. Ch. I, 16 May 2003, para 431; The Prosecutor v Juvénal Kajelijeli , Judgment, Case No. ICTR-96-44-T, T. Ch. II, 1 December 2003, para 855; Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze v The Prosecutor , Appeal Judgment, Case No. ICTR-99-52-A, Appeal Chamber, 28 November 2007, paras 678–679; The Prosecutor v Simon Bikindi , Judgment, Case No. ICTR-01-72, T. Ch. III, 2 December 2008, para 419; and The Prosecutor v Callixte Kalimanzira , Judgment, Case No. ICTR-05-88-T, T. Ch. III, 22 June 2009, para 515.

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