[MUSIC] Hello, welcome back to International Criminal Law, with Michael Scharf. In today's session we're going to be looking at the issue of. International criminal responsibility. This is different than regular criminal law because when it comes to international crime, they're usually committed by large groups of people. Think about terrorist networks or pirate groups or war crimes that are committed by government and military agents. Crimes against humanity that are committed by paramilitary groups. Now what makes group activity difficult and unique is that the leader can be very subtle. And leaders have learned this trick from Nuremberg, when the Nazis, as I said in an earlier session were really convicted on the strength of their own documentation. Now leaders try not to document their orders that they think may be one day considered a war crime or an illegal order, so they'll say things like you know what I want you to do, now go do it. And others might say, let's go out and get the job done and kill the cockroaches, when they are not really talking about cockroaches but really another ethnic group. So over the years, starting with Nuremberg the international community has wrestled with special rules that would help prosecutors be able to prove international crimes in a situation where it might be very difficult to do so under the ordinary types of liability that apply in domestic systems. And so that's what we're going to be looking at today. Our objectives are first of all to learn about the history and application of command responsibility. This is the kind of law that applies when a military or civilian superior is held responsible for the things that their subordinates do. Next, we'll be looking at and trying to understand the criticisms of something known as the Joint Criminal Liability doctrine. Which started out at Nuremberg and has been applied in the international tribunals. Then we'll be looking at the International Criminal Court's alternative approach called the Control of the Crime doctrine and why that has created so much controversy in The Hague. And finally we'll be exploring the liability for incitement to commit genocide. Let's begin with the law of command responsibility. So, it all starts with the case of Yamashita. General Yamashita was the Japanese General that was put in charge of the Philippine Islands at the end of World War II. And while the allies were starting to invade the islands and cut off his communications and slowly put a noose around him so that they would ultimately capture the Philippines, his troops began to commit the worst atrocities you can imagine. And in fact, The Sadist of the Rising Sun is a book written about the horrible things that were committed. Mass rape, mass murders of civilians, death marches and so forth. Well, when they ended up prosecuting Yamashita. The case went all the way up to the US Supreme Court. And the Supreme Court affirmed that he could be held responsible under the theory of command responsibility. In other words, because he was the commander, the highest ranking person there, whatever his subordinates did, he was ultimately responsible for. And they ended up confirming his conviction and his death sentence. But, justice Murphy, a Supreme Court Justice in the United States, dissented, saying that nothing in all history or in international law justifies such a charge against a fallen commander of a defeated force to use the very inefficiency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies, bears no resemblance to justice. Or to military reality. So what you could see is, there was a big debate going on within the US Supreme Court, and the people who prosecuted Yamashita. Could you hold him responsible for his failure to control his subordinates, when part of the reason, or maybe primarily the cause of the reason for his failure to control was that the allies were so successful in disrupting his communications. Ultimately, the court felt that he had condoned a environment, a climate of lawlessness, and this was why he could be held responsible. In other words, in the future based on this precedent, whenever a leader, knew or should have known that his subordinates were committing war crimes or crimes against humanity, that leader had a responsibility to either punish those people, or to stop those atrocities. Now, military command Is something that every country has. In this slide, we see the US command structure. It starts with, of course, the highest command at the General level, the Lieutenant Generals, goes down to Colonels, Lieutenant Colonels, Captains, Lieutenants, and even Sergeants. At each of these levels, a commander has De jure, which means legal authority, and effective control over their subordinates in the chain of command. And in each of these situations, whatever happens lower down can be held responsible for the person above them. And not just the person who has the immediate rank above them but all the people on the chain of command that have authority to either punish or prevent the atrocities by the lowest level of people. The statutes of the modern International Tribunal starting with the Yugoslavia Tribunal, and the Rwanda Tribunal, the special court for Sierra Leone and even the International Criminal Court. All have a very similar clause that says that the fact that crimes were committed by subordinates does not relieve the superior of criminal responsibility. And here's the key. If the commander knew or had reason to know that the subordinate was about to commit such acts or had done so, and the superior either failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. So there's three elements here, one is a negligence standard, that the commander has to either know of the crime, that's a knowledge standard, or have reason to know and that's a negligence standard. Meaning that he can't have guilty avoidance of knowledge. If a reasonable person in his situation should have made inquiries then that triggers that first factor. The next factor is that the person who's in command has to either fail to take necessary and reasonable measures to prevent such acts. That doesn't mean they have to do everything under heaven and earth to stop these crimes, but they should do what a reasonable commander would do that would have a good likelihood of stopping these atrocities. And if that fails the commander always has the responsibility to punish the perpetrators because that sends a signal to the next group that they can't get away with those. And that severs this kind of climate of lawlessness that Yamashita was held responsible for. Now, let's look at one of the most famous modern cases of command responsibility. This is the case that was tried by the Yugoslavia tribunal in the Celebici case. Celebici was a horrible concentration camp, where Bosnian Muslims were put by the Bosnian Serbs during the height of the ethnic conflict. And in this slide, you can see how horrible the conditions were. Now they ended up prosecuting three people in the Celebici case. They began by prosecuting Mr. Mucic, he was the Celebici camp commander. They found him guilty on the basis of command responsibility, and sentenced him to seven years. In other words, because he was the commander, the things that his subordinates did including raping Inmates, mistreating them, abusing them, beating them, starving them. They all were the responsibility put at his doorstep. Now, he proved that he didn't order any of those things. And he said that he didn't really know what was going on, but they said, you're the camp commander. Under a negligent standard, you are imputed to know these things. Now they didn't give him the greatest sentence. They didn't convict him for as long as they would, if he had committed the crimes himself, or if he had ordered the crimes. But they did give him a pretty serious term, and that was seven years. Now the next person that was tried in the same case, was his deputy, Delic. He was the deputy camp commander. He was also someone who was actually very abusive, and he ends up being convicted for the crimes that he committed. But, on the charge of command responsibility, his lawyer proved that he had very little power in that concentration camp. In fact, Mucic, his commander, the camp commander was the person who made all the decisions that applied to the guards and the lower level people, and the deputy camp commander was just sort of an assistant. Think about the Vice President of a country like the United States, who everybody says really doesn't have any power, unless of course there happens to be a death of a president. Well that's what Delic was able to successfully argue. And then finally, there was a man by the name of Delalic. He was a very high leader, a sector commander. Which meant that he had responsibility for the area, where this particular concentration campus was located. And you would think, if you could get the person who was the commander of the concentration camp, then you also ought to be able to get his boss. Maybe the theory is, that the boss negligently selected or negligently trained the camp commander, or that he should have been checking in on what was happening with the camp commander. But what Delalic was able to convince the court, is that there was several people at his level. And that his responsibility was for military actions in the field. And that another sector commander was responsible, for actually supervising the camp commanders that were supervising the concentration camps. So he said that he was outside the direct chain of command, and even though he was a superior, and in theory he could have disciplined Mucic. But In reality, that would have gone through a different chain, and for that reason Delalic was found not guilty of command responsibility. Now this case is a wonderful case, for showing you a couple of principles. First of all, in order to prosecute successfully, a commander under this negligent theory of command responsibility, you have to show that they have effective control of the troops. There has to be a direct line of authority between them and the perpetrators, and each of the people in this case that were acquitted. Were acquitted on the basis that they didn't have that effective control or that direct line of authority. Now let's go to another case. This is the case of the Rwanda Tribunal. The question there was whether someone who was not a military commander, but was the owner of a tea shop, whose troops, his subordinates, his employees, went out on rampages and killed the other ethnic groups. So they were Hutus, that worked for him at the tea shop. The picture on the bottom is this tea shop, and all the tea that they grow in this plantation. And the picture above that, is these people that would go out during breaks or after work, and they would just be thugs that would just torment the Tutsis population and murdered them. And so the question was, could you hold this guy who was just a private citizen, a tea factory owner, for responsibility for what his subordinates did, the people that were his employees. And what the Rwanda tribunal, which is shown in this picture, did and you also have the picture of Mr. Musema here, they held him guilty on command responsibility. They found that command responsibility doesn't only apply in military situations, it can also apply to private citizens, when they have a superior subordinate relationship, and they have the power to appoint or remove people. And when they know, and in this case, this person knew that everyday, his subordinates, his employees were going off after work, and committing these atrocities. In fact, sometimes he was there, and he watched them do that and he cheered them, on but that was a different issue in the case. But they said he knew this was going on, and he could have stopped them easily. He could have said look I don't support what you're doing, and if you keep doing this I don't want you to return to work as my employee, and that would have stopped it. A simple word from him. And so the court found that the same idea of command responsibility, that applies to military commanders, can also apply to civilians, outside of the military context. And this was a pretty unusual case. I think it's a wake up call for a lot of people who are civilians. Maybe they're mayors of towns, or governors of provinces, or in this case, they're just local people that own a business. If your subordinates are permitting crimes, you have a responsibility under international criminal law, to either prevent them or punish them if you can. Now let's look at the next type of liability, because command responsibility is often difficult to prove, as you saw in the Celebici case. You have to prove this effective control. There's another kind of liability that was developed In the Tadic decision before the Yugoslavia tribunal, which was the subject of one of my books, a Pulitzer prize nominated book called, Balkan Justice. And what the case is about is a fellow by the name of Dusko Tadic. Looks a little bit like the actor Dustin Hoffman when he was young in The Graduate. So what Dusko Tadic did is he lived in this area called Prijedor, where there was roughly the same number of Muslims and Serbs and Croats, in a town near the border with Serbia. And this town was the subject of a lot of ethnic cleansing. And in addition to having people in the military commit atrocities, there would be people like Dusko Tadic, who was a cafe owner, a karate instructor, and a part time traffic cop. And he would get together with his chums, his little buddies, the people that he would teach to do karate, and they would go out and walk the town and this is a picture of the town. And they would beat people. And so at his trial, they did prove that he on a regular basis, would go with his buddies into this little town, and sort of abuse the population. There were cases of rape, there were cases of beatings. Now, there were several people who died from these beatings, but they were unable to prove that he actually administered the beatings, or even that he was there that particular moment, because these guys would kind of just roam around the town, and nobody was able to say, because the victim was dead, that yes in fact, Dusko Tadic was there. So instead of trying to prosecute him on direct responsibility for the murders, they said that what he had done, is he had joined a criminal clique. A group of people with a criminal purpose, and that purpose was to abuse the population of ethnic Muslims. Because they were Serbs, and this was in the context of widespread ethnic cleansing by the Serbs. In Bosnia. Now the question then was, if he was not able to be proven to have actually killed or abused the particular victims, could he be held responsible because his friends and his buddies were doing this and it was reasonably forseeable that when they went around beating people within an inch of their life, that some people would cross that threshold and actually die. And so what the court does, is they decide to look back at the historic Nuremberg precedent. And at Nuremberg, certain people were convicted of quote a common plan. And in this conviction, it included the forseeable consequences of the plan. So by using this old Nuremberg precedent, they were able to apply it against Deutsche Kotavich. And when they did so, they actually created several levels of this joint criminal liability. The first level, which is called JCE I, Joint Criminal Enterprise number one, is for people who have a common purpose. This is the example like where Hitler says, let's go and kill all the Jews. And now all the people who are working to make that happen are going to be held responsible for that common purpose. And now so for example, in this picture you have Hitler with Mein Kampf. And you have Eichmann who was the engineer, if not the architect, of the final solution. And he basically was the one who figured out how to get the Jews to the concentration camps as fast as possible. He made the trains run even faster in order to please Hitler so he could kill as many people. In fact at his trial, he said one time that he was very proud of the fact that he was able to double the number of people that they could transport to the concentration camps, to the death camps, and that he showed Hitler and got promoted on the basis of his efficiency. So, in this situation, when you have a leader, and you have someone like Eichmann, and they're working together in this joint criminal enterprise to exterminate all the Jews, then Eichmann is going to be responsible not just for what he did, making the trains run faster, but also for what is going on at the concentration camps, what's going on in other areas, for everything that's related to this common purpose. And this is fairly uncontroversial, and that was something that they could apply. Now the second form of joint criminal enterprise liability is called JCE II. It's the systemic form. The so-called concentration camp cases. And here, the very fact that somebody joins up to run a concentration camp. Be they the camp commander, or the deputy camp commander, or a cook, or a guard, or someone who just delivers the food, or someone who just brings the inmates in and out, all of those people are working in a joint criminal enterprise. That being the concentration camp, the death camp. And as long as they can prove that they voluntarily joined to do this or that they had a choice that they could have said and this is true also Daniel Goldhagen's book Hitler's willing executioners actually says that people who are assigned to be working at death camps in Nazi Germany were always given the choice if they wanted to go somewhere else. Now, the choice may have been do you want to go to the Russian front and that may not have been such a great choice. But, in the situation as long as people are voluntarily working at a death camp, then everybody shares responsibility. And what they're doing is basically imputing a common purpose because you have to know when you work at the death camp or a concentration camp where people are abused that that's the nature of the activity. And that's fairly uncontroversial as well. Now, this comes of course, from the experience of Nazi Germany, and in the case of some of the death camps where Zyklon gas was used to kill people, this was then used to prosecute not just the camp commanders, but all the people down the chain who were responsible for the mass killings at these concentration camps. Let's look at the third, and in this case, the most controversial type of joint criminal enterprise liability, called JCE III. In this case, it's called the extended form. Any perpetrator can be held responsible for the reasonably forseeable consequences of the other perpetrators, if they all were part voluntarily of the same plan. Now this is sort of similar to what in the United States we call the felony murder doctrine. In the felony murder doctrine, if two people or three people decide to rob a bank and let's say in this cartoon that you're seeing the getaway driver says, look I'm gonna drive the car in part of this felony, but you just make sure not to do anything stupid. I don't want anybody to be killed in this operation. Maybe they agree to use fake guns or unloaded guns. But the two perpetrators shown here maybe they changed the gun, and it was loaded. And maybe during the heist, they pull the trigger and someone dies. Under those circumstances, under felony murder doctrine, not only are the perpetrators who pulled the trigger and killed somebody responsible for murder, but also the getaway driver because it was reasonably foreseeable that if you engage in a bank robbery, that someone might be killed. And so that doctrine which is only applied in a few countries, was adopted by the Yugoslavia Tribunal in the Tadic Case, and in doing so, they said, we're not making new law. They went back to the old Essen Lynching case, a case tried by a control council law number ten tribunal, those were those mini tribunals that were established by the occupying powers after Nuremberg. And those tribunals applied the Nuremberg Precedent. So, in this case, also known as Murdered by the Mob. What happened was, in 1944, a bunch of British airmen landed in this area, and they were captured by the Germans, and they were paraded through the town. And while they were going through the town, the commanding officer, a German captain, was heard by everybody to say to his subordinates, you know, these guys deserve what's coming to them. And if the crowd wants to mess with them, and molest them, let them do it without interfering. Well the crowd heard this, and they began to attack. The people, they threw stones at him. In one case, they threw one off a bridge. And ultimately, the British airmen were killed. Now, you could prosecute, of course, the commander because in a way he incited this, but could you also prosecute all of the guards who happened to be there? They said you could, because it was reasonably forseeable, under these circumstances, that there would be injuries, if not death. And so, they held all the German soldiers jointly responsible for murder. And the Tadic decision of the Yugoslavia Tribunal, which occurs in 1998, looks back to this old precedent from the Nuremberg age, and says, we're not creating new law, we're just applying the precedent of Nuremberg, updating it to this new age. You can see that JCE III, as I said, was controversial, and it's going to be subject to some criticisms. The first of which is that it's basically guilt by association. What the defense counsel say in cases where their clients have been charged with Joint Criminal Enterprise III, is that JCE doesn't stand for joint criminal enterprise. It stands for just convict everyone. They say this is the magic bullet the prosecutor has. And there's no way that we can get our clients off because if you can prove, as a prosecutor, that the clients, that the defendants were part of a group of people That had the intent to do something criminal. And that could be a very vast group, it could be anybody, who's in a paramilitary group. Anybody who's in the military, if the military itself is committing atrocities. And so if you can prove that, then you can hold every each and everyone of them responsible for the reasonable, foreseeable consequences of that group criminality. And that is really something that makes it difficult to defend. Now another one of the criticisms is that in effect, what you're doing is you're applying the American or British version of conspiracy law. This is the crime that says if you join together and act jointly in an agreement to do something criminal, that all of you can be held responsible for the consequences. Now, that's not controversial in the United States and Britain, but many countries do not apply conspiracy law. It's really a uniquely British and American conception. And at Nuremberg, this was one of the problems. The US tried to apply conspiracy and the Nuremberg Tribunal was not comfortable with it especially since the French judge and the Russian judge were from countries that didn't have conspiracy they pruned it back and they would not allow a full conspiracy charge to go forward. So the argument here is that JCE is just conspiracy disguised and given another name. And that's not right to apply in an international tribunal since almost every country in the world does not recognize this vast notion of conspiracy. So we'll put a little cross through that. A third one of these things that comes up is something that came up by the special tribunal for Lebanon. Now this is the tribunal that was created by the UN and the Lebanese government to prosecute the people who were responsible for the assassination explosion of the former prime minister of Lebanon, Mr. Harari, and 24 other people that were killed that day. And in the last session, I showed you pictures of the crater that was caused by that explosion. Now the tribunals appeals chamber had an early decision where they were trying to figure out what forms of liability should apply to this crime of terrorism before their court. And they said that JCE 3 which is again, it's holding someone responsible for the reasonably foreseeable consequences of the joint criminal enterprise. That that's a negligence standard. You're basically saying that if it's reasonably foreseeable, they didn't order it, they didn't commit it, they didn't even know for sure it was going to happen. It was just something that might be likely to happen, and therefore a reasonable person would know that it could happen. Now the problem with applying a negligence standard to the crime of terrorism, they said, was that terrorism is a specific intent crime. Remember in the last session where we wrestled with the definition of terrorism. And we talked about the definition that this tribunal came up with. The definition of terrorism that the Lebanon Tribunal applies says that it has to be a criminal act, and it has to be for the specific intent instill fear in a population. And since the crime requires a specific intent, then merely being negligent is not sufficient. You have to have this actual intent, and for that reason the appeals chamber said JCE 3 does not apply here. Finally, the Cambodia Tribunal, which is a tribunal that is prosecuting the leaders of the Khmer Rouge for crimes that were committed in 1976 to 1979 in Cambodia, the killing fields atrocities. This tribunal had to decide whether joint criminal enterprise one, two, and three should apply to the Khmer Rouge leaders that were under prosecution. And the problem for them is they could not apply the tautage precedent, which has also been applied at the Rwanda Tribunal, and the special court for Sarah Leone. Because their crimes that they were looking at, predated the 1998 tautage decision. These were crimes from 1976, so the question had to be, what was clearly a mode of criminal liability in 1976 that the perpetrators should have known? And they looked at joint criminal enterprise number one, if everybody has the same intent, the same purpose. Then you're responsible for what happens. And they said, that's fine. They looked at joint criminal enterprise number two, the concentration camp situation, and they said that was clear. But when they looked a joint criminal enterprise number three, and they looked at just the Essen lynching case, they said, it's not so clear to us that that is the state of the law. It didn't come from the Nuremberg trial itself. It was from one of the mini Nuremberg subsequent trials. And if you look at the case, it's just a very scant record. You don't really know what was being applied. So they chose not to apply joint criminal enterprise liability number three. And what you're seeing is happening here is that this kind of liability, which is based again on the US felony murder doctrine is so broad and alien to many countries, that they're just not comfortable with it. And so, they have decided, that in the Cambodia proceedings, they will not hold people responsible, under this very expansive theory of the extended form of joint criminal enterprise liability. There is something else going on in the world, and that is that the International Criminal Court, which was established after the the tautage decision, it's made up of judges mainly from civil law countries, as opposed to common law countries. This is a map of the world, common law countries are those countries like the US, and the UK, Canada, Australia and a couple of former colonies of the UK in Africa that apply the adversarial approach to criminal law. Civil law countries apply the civil law inquisitorial approach to criminal law that came from the Napoleonic Code that has been applied to almost every country in the world. When the judges were elected to the international criminal court, most of them were from the civil law tradition, not the common law tradition. And what's going on in the Hague, is there is literally a Darwinian struggle to see whether the common law or the civil law will be supreme. And one of those places that this struggle has come to head is in the question of whether joint criminal enterprise liability ought to apply. And what the civil law countries are looking at as an alternative is something that the German government has been applying called the Control Theory. And in a case called Lubanga, the International Criminal Court decided to apply this alternative approach to the liability of Mr.Lubanga. He was a paramilitary general in the Congo. He was accused of recruiting and using child soldiers and abusing these people. And the question was what type of liability would they apply. The prosecution wanted to apply joint criminal enterprise liability. And so instead, these are the three judges in the case, they decided to apply the Control Theory. This is a theory that was developed by a scholar in Germany named Claus Roxin and it was first applied in the German Border Guard cases right after the unification of east and west Germany. And those were cases against the East German Border Guards that murdered lots and lots of people who tried to cross over the fence into freedom, into democracy, into what was then, West Germany. Now in this case, they held the accused guilty under the Control Theory. And what the Control Theory requires, is that there has to be proof that the Position of the perpetrator in the common plan is so essential that if his nonperformance of his assigned tasks were to occur, it would cause the plan to fail. So in other words, the person has to be the lynchpin. To the success of the operation. If you pull his pin out, the, I don't know if I'm mixing metaphors, but the house of cards would fall, and nothing would work. And that's what's required for the control theory. Now you can see this is a lot harder to prove than joint criminal enterprise, where you can just convict everyone, as the defendants happen to say. So, although Judges Benito and Blattmann adopted the control theory, Judge Fulford said, this theory had to be rejected, because it's uniquely German. It's not something that has been applied in international criminal tribunals before, and it creates an insurmountable problem for ICC, International Court Cases. Now, this is the first case where this has come up in the International Criminal Court. It is likely to come up now in every case. There's already been one where there's been a dissent by Judge Christine Van den Wyngaert from Belgium, on the same grounds as Judge Fulford. And what you're seeing is, this is that Darwinian struggle in the International Criminal Court. Will it be the common law joint criminal enterprise doctrine? Or is it going to be the civil law uniquely German control doctrine that will emerge? And this is something we'll have to stay tuned. But it's important at this point that we understand, and why there is such a fight over them. Now let's look at a completely different crime, and that is the crime of incitement to commit genocide. In other words, words that kill. The crime of incitement was one of those crimes that was prosecuted at Nuremberg. One of the defendants at Nuremberg was Julius Streicher. He was the publisher of the anti semitic German weekly called Der Sturmer, and in this weekly he would have cartoons or stories that demonized the Jews. And over time his propaganda through a private newspaper was really responsible for some of the hatred and virulent anti-Semitism of the German people that came to a head in the Final Solution. And in all the other atrocities in Germany. So he stands trial, together with the other 22 ranking Germans who were at the Nuremberg Tribunal. And the charge against him was that he had incited to mass murder Europe's Jewish population. And he was found guilty. Now, taking this old precedent, the international criminal tribunal for Rwanda wanted to apply it to several cases involving the media in Rwanda. Now let me give you some background again of what was going on. The year was 1994. In Rwanda you had two ethnic groups. The Tutsis and the Hutus. The Hutus decided to systematically eliminate the Tutsis and as part of this widespread massacre where 800,000 Tutsis, almost two thirds of their entire population was wiped out in four short months. The radio stations played a huge role because the Tutsis weren't just killed by the military. They were killed by the tea factory operators that I showed you earlier in the session, and the reason they did this, and how they were able to do this is because people on the radio would say go out and kill the cockroaches. And they would tell them where there were people that would be subject to it. So in the Rwanda tribunal, the big trial was the media trial, where they were prosecuting people for incitement to commit genocide. The requirement for this crime is that it has to be direct and public incitement. It cannot be indirect, and it cannot be private. And let's test what that means. Let's say you have someone who's a radio personality in Rwanda. And he gets in the studio and he starts to create these tapes in which he's really urging his fellow Hutus to go out and murder. And he gives them justification for it. So here's a cassette that he makes. It's called Kill the Cockroaches. And cockroaches was, in Rwanda, the code word that the Hutus used for the Tutsis when they were inciting the population. So, the first question is, what if he makes this tape and the tape is intercepted before it can be broadcast. Is it direct and public if it was merely an effort that failed to incite genocide? And the second question I want you to ponder is what if the tape is broadcast, but nobody immediately jumps down and runs around and starts killing people. What if it takes a couple of days, or even a couple of weeks, and yet when the people actually die, one of the things that comes to light is that they were motivated in part by the things that this radio personality had said. But it takes too long. What if nobody is killed right away? Is that direct incitement? Now, the international tribunals have looked at this, and they have decided that incitement is what is known as an inchoate crime. It means that the proof of the result is not necessary for the crime to have been committed. Only that the perpetrator meant for that result to occur, and that there was potential in what the perpetrator did to bring about that result. And so, it is the intent of the speaker that matters, not the effectiveness of the speech. In other words, in our hypothetical, the perpetrator would be held responsible for making the tape, even if it was intercepted and nobody committed genocide. Or even if it took a while for it have its effect and it was harder to prove the direct link between the statements and the genocide. As long as you could prove that the intent of the perpetrator was to get people to commit genocide, and that can be proven circumstantially, by simply listening to the tape. And one of the things that's interesting in the media trial is that they didn't just prosecute the hate radio speakers who spoke in code, but they could figure out the code. They also prosecuted a rock star for songs that were anti Tutsi. And that brings us to the question of, what's the difference between hate speech and incitement to genocide. This is an important difference because hate speech is not an international crime. There are countries that, on the domestic level, will make it a crime. But it's not an international crime. It is not part of genocide. It has to rise to the level of incitement to be genocide. So what's the difference? The Rwanda Tribunal in the Media Case emphasized that incitement requires a calling on the audience to take action of some kind. If you can't show that the words were a call for action. In the US, we say that it has to create a clear and present danger of action. If you can't prove that, then inflammatory language is only going to be considered hate speech and not an international crime of incitement to genocide. Now let me end with this really interesting hypothetical question. Iranian President Ahmadinejad has made a number of public speeches calling for the destruction of Israel. And in many of these speeches, he is very explicit about saying that the people in the Middle East Need to make sure that the Jews are wiped off the map. So, here's a picture of him making such speeches. During the presidential debates and campaigns in the United States, Republican candidate Mitt Romney made the point that Ahmadinejad should be charged in the United States with direct and public incitement to commit genocide. Now remember genocide is a universal jurisdiction crime. And in the United States we actually have, in my country, a statute that says that anybody who commits genocide, as defined in the convention, can be prosecuted in U.S. court. And the convention defines genocide as including incitement, which is what we've been talking about. So the question Mitt Romney raises is when Ahmadinejad comes to visit the United States to give speeches at the UN, or at colleges, should US government officials, law enforcement officers, grab him, if he would be then charged with incitement to commit genocide from his speeches? And, part of the answer is you cannot do that when he's at the UN. The UN has a special treaty with the United States, so that people can go there and say whatever they want and they have full immunity while they're at the UN. But he also went, I believe to Princeton University and gave a speech where he repeated many of these statements. And the question then is, if he went so far as to commit incitement, why shouldn't he have been grabbed and prosecuted? And what you'd have to do is actually read his statements and apply the standard that we've been talking about. Was there a direct call for action in his statements? Or was it more indirect, or even just merely hate speech? So it's a great hypothetical for exploring the contours of this unique crime, incitement to commit genocide. So today, we've looked at four different unique theories of criminal responsibility that apply in international trials and to international criminal law crimes. We looked at the law of command responsibility. We looked at joint criminal enterprise liability. We looked at the International Criminal Courts alternative, control of the crime theory and finally we've talked about this very special crime incitement to commit genocide. And I think what you've seen is that international criminal law doesn't just have unique crimes, as we've seen in the last two sessions, but it also has unique modes of liability. And, that's part of what makes it a very interesting and complicated area of law. And it creates certain challenges for the defense. I think if you get the sense from all of these, that it's harder to win as a defendant in an international criminal law case than it would be in a domestic case because of these broad theories of liability. And quite honestly, that was designed by the drafters of these tribunals and the laws. The law does seem to be slanted against the perpetrators and the rationale for that is that, the group responsibility is so hard to prove under regular domestic theories of liability, that they had to arm the prosecution with these extra things to level the playing field. But the question of course is have they un-level the playing field? If you are a criminal defendant, what are you chances really of being able to escape liability? In a next class session, we're going to look at specialized defenses. These are things that were created for the defendants applicable to international criminal law but there also some of these defenses that, like the theories of liability, have over time been sorta snipped at the bud in order to make it easier to prove the prosecution's case. And so one of the, I guess themes of this course, that we're starting to look at and we'll see throughout the rest of the sessions is whether international criminal law, which has been developed to try to hold perpetrators accountable for mass atrocities is really fair. Until next time, go and do the online readings and I'll look forward to seeing you. [MUSIC]
