CYIL vol. 15 (2024)

AVITUS A. AGBOR 2.6 Key legal analysis of the Streicher trial

An appreciation of the Streicher case, especially the locus classicus of the judgment explaining why he was convicted for the offences, would reveal some stunning observations: first, on the issue of causation that would link his publications to the atrocities, the Tribunal did not insist on the application of the “but for” test. Rather, it took a “contributory” cause(s)/ factor(s) approach by looking at the general effect his publications had on the minds of Germans, and how that influenced them to commit those crimes. In other words, evoking the principles of participation in criminal law, his participation in the planning or commission of those crimes would be indirect, attracting accessorial liability. Secondly, Streicher was not prosecuted for hate speech: whatever that concept was when it was developed, a perusal of the Charter of the IMT, Nuremberg, would show that “instigators” was the word used to describe individuals who would have instigated the formulation or execution of any of the crimes over which the IMT, Nuremberg, had jurisdiction. In the legal developments after Streicher’s trial, the role of propaganda that would amount to “hate speech” would be acknowledged in the preparatory works prior to the adoption of the Genocide Convention. The criminalisation of direct and public incitement to commit genocide in the Genocide Convention attests to this. The Statutes of the ICTY and ICTR regurgitating the wording of the Genocide Convention in relation to the inchoate crime of direct and public incitement to genocide and the recognition of instigation as a mode of participation reflect the legacy of Streicher’s trial: first, the proliferation of hate speech may amount to a punishable act such as direct and public incitement to commit genocide; and secondly, a mode of participation called instigation. However, the usage of “instigation” and incitement, with the former as a mode of participation and the latter a punishable act would receive much clarity from the Trial and Appeal Chambers of the ad hoc Tribunals. The jurisprudence of the Trial and Appeal Chambers of the ICTR has fleshed those legal concepts, delineating clearly their meanings and nuances and whether they can be used interchangeably. Looking at the jurisprudence, instigation as a mode of participation under the Statute of the ICTY and ICTR requires proof that the instigation substantially contributed to the commission of the crime(s) over which the Tribunal had jurisdiction. 59 On the other hand, direct and public incitement to commit genocide is an inchoate crime: that means criminal liability would be imposed irrespective of whether the said instigation actually resulted in the commission of the crime 59 The following cases corroborate this view: 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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