CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ PROSECUTING „HATE SPEECH“ AT THE IMT, NUREMBERG … of genocide. 60 Lastly, the words incitement and instigation can be used interchangeably, 61 but criminal responsibility for each would vary: in other words, instigation or incitement as a mode of participation would require proof that the said instigation or incitement substantially contributed to the commission of the crime. On the other hand, direct and public incitement or instigation to commit genocide requires proof that the incitement or instigation was direct, public and aimed at the commission of genocide. The imposition of a substantial contribution requirement as an element of instigation as a mode of participation has been castigated in academic discourse, arguing that it is a flawed interpretation of the relevant provision on the imposition of individual criminal responsibility. However, if one were to recognise the most notable impact of the Streicher trial and conviction, it can be argued that in view of his mode of participation in the formulation, preparation and commission of atrocities in Germany, the inclusion of direct and public incitement to commit genocide bears the imprint of the Streicher trial as the delegates thereto appreciated the overall impact of such lewd and offensive publications on the minds of the masses, and how that could lead to the commission of crimes against specific individuals, races, nationalities or ethnicities. 3. Conclusion From the foregoing analysis, a few concluding remarks can be made: first, in giving birth to international criminal justice for the prosecution of serious crimes in international law, instigation was recognised as a mode of participation in the Charter of the IMT, Nuremberg. Two individuals, Fritzsche and Streicher stood trial for instigating the crimes over which the IMT, Nuremberg, had jurisdiction over. The former was acquitted while the latter was convicted and sentenced to death by hanging. Secondly, it has been argued above that Streicher, even though he did not perpetrate the material elements of any of the crimes, was criminally responsible because he had evolved to a notorious instigator as his publications had a tremendous effect on the individuals who perused them. The judgment of the IMT, Nuremberg, underscored this role: in view of the frequency of the anti-Semitic publications and the virulent contents therein, no one would doubt the influence that he played: an objective he sought to achieve when he fabricated and disseminated those publications which, in the end, was consumed by the perpetration of atrocities against the Jews. Thirdly, in establishing a causal link between Streicher’s publications and the ensuing atrocities against the Jews, the IMT, Nuremberg, did not delve the issue of remoteness both in time and place. The IMT, Nuremberg’s view was that in the overall context of the victimisation of the Jews that 60 On this principle, the following cases are illustrative: 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. 61 See the following cases: The Prosecutor v Jean-Paul Akayesu , Judgment, Case No. ICTR-96-4, T. Ch. I, 2 September 1998, para 481 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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