The crime of complicity in genocide: how the International Criminal Tribunals for Rwanda and Yugoslavia got it wrong, and why it matters.

AuthorGreenfield, Daniel M.
PositionSymposium on Redefining International Criminal Law
  1. INTRODUCTION

    The Convention on the Prevention and Punishment of the Crime of Genocide (1) (Genocide Convention) arose from the ashes of the Holocaust. Born of revulsion at the almost incomprehensible scale and success of the German campaign to exterminate European Jews and of collective guilt for the failure to prevent what was ultimately preventable, the Genocide Convention held great promise. Developed under the aegis of the United Nations, the Genocide Convention was a virtual codification of the "Never Again" ethos. Indeed, given the clear prohibitions and equally clear responsibilities contained within the Convention, one could have believed at the time that genocide was a thing of the past.

    Unfortunately, the past sixty years have not been kind to the promise of the Genocide Convention. As evidenced by the campaigns of slaughter in Cambodia, the former Yugoslavia, Rwanda, and now Darfur, genocide, rather than being relegated to the history books, has become only more common in the years since the ratification of the Genocide Convention. The slogan "Never Again" seems quaint and idealistic; indeed, "Again and Again" might more accurately characterize the years that have passed since the Genocide Convention was adopted. The reasons for this failure are many, including naked political calculations, imperfect knowledge, deference to sovereignty, and isolationism. (2) However, political explanations do not tell the entire story. It is true that ex ante considerations have often left nations reluctant to intervene in order to prevent genocide from occurring. However, the ex post judicial responses once genocide has occurred have been perhaps equally fatal to the promise of the Genocide Convention. (3)

    The Genocide Convention and the international criminal tribunals enacted to give force to its provisions, including the International Criminal Tribunal for the former Yugoslavia (4) (ICTY) and the International Criminal Tribunal for Rwanda (5) (ICTR), have twin purposes: to prevent genocide and failing that, to punish genocide. (6) Because the international community has largely been unable to prevent genocide through ex ante measures, prevention may ultimately only be achieved through the deterrent force of punishment. During the past fourteen years, the ICTY and ICTR have carried out the first significant post-Genocide Convention attempts to punish the perpetrators of genocide. These ad hoc Tribunals have played a critical role in responding to the crime of genocide. For the first time since Nuremberg, perpetrators of genocide have been brought before the international community and held accountable for their crimes. (7) Moreover, the ad hoc Tribunals have developed a significant body of legal precedent with respect to the crime of genocide that is now available to future tribunals should the need arise. (8)

    Unfortunately, the Tribunals have made a critical jurisprudential error that has deprived the Genocide Convention, and the Tribunals enacted to enforce it, of an extremely significant deterrent effect. Under the Genocide Convention and the Statutes of the ICTR and ICTY, complicity in genocide is a stand-alone crime, ripe for prosecution. However, recent decisions of the Tribunals have understandably, but erroneously, determined that complicity in genocide is merely a form of liability for the crime of genocide, and not a crime itself. (9) The ad hoc Tribunals appear to have arrived at this decision through the mistaken conflation of two separate crimes. The first is the crime of complicity in genocide, as nominated for punishment in Article 2.3(e) of the ICTR Statute, a substantive crime provision. The second is the crime of aiding and abetting genocide, as created by the interplay of Article 2.3(a), also a substantive crime provision, and Article 6.1, the liability provision. (10) To arrive at this errant conclusion, the Tribunals appear to have inferred that complicity in genocide is a redundant artifact born of the verbatim inclusion of portions of the text of the Genocide Convention within the ICTY and ICTR Statutes. (11)

    This error is understandable, but critical. The crime of complicity in genocide captures a class of perpetrators broader than those implicated by aiding and abetting the crime of genocide. This is a distinction seemingly recognized by the drafters of the Genocide Convention and of the ICTY and ICTR Statutes. One found guilty of aiding and abetting the crime of genocide must have the heightened mens rea of the genocidaire--what I term the "specific intent specific motive nexus;" by comparison, one who commits the crime of complicity in genocide need not have this heightened mens rea. Instead, a lesser mens rea, such as malice evidenced by reckless disregard, or what I term "specific intent without specific motive," should suffice to attach guilt. Thus, the two provisions are designed to capture very different perpetrators. One guilty of aiding and abetting the crime of genocide had as his very purpose the facilitation of the commission of genocide. The perpetrator of the crime of complicity in genocide, in contrast, may not have had genocide as his purpose. Instead, genocide may merely have been the foreseeable result of his actions.

    The failure by jurists to appreciate that complicity in genocide is a stand-alone crime whereas aiding and abetting is merely a form of liability for the crime of genocide creates a gaping loophole, providing unwarranted sanctuary to those who commit the crime of complicity in genocide. Moreover, it signals to would-be facilitators of genocide, whether military commanders, elected officials, arms dealers, or nations themselves, that genocidal conduct more often than not goes unpunished. The failure to hold these players accountable threatens to significantly weaken the Genocide Convention and the criminal tribunals enacted in its wake. Only by correcting this jurisprudential error can the "Never Again" ethos of the Genocide Convention be fully realized.

    This Article proceeds in three parts. Part II introduces the jurisprudence of the ICTY and ICTR with respect to the crimes of complicity in genocide and of aiding and abetting genocide. Part III analyzes the Genocide Convention as well as the Statutes of the ad hoc Tribunals enacted to enforce it. This section describes how and why these instruments have been misinterpreted and proposes a corrected interpretation. Part IV reveals that this corrected interpretation might result in culpability for a broader class of players than current jurisprudence allows, including political leaders and arms dealers who have plausible deniability and nations, such as the United States, with interventionist foreign policies. (12)

  2. THE CRIME OF COMPLICITY IN GENOCIDE VERSUS AIDING AND ABETTING THE CRIME OF GENOCIDE IN THE JURISPRUDENCE OF THE ICTY AND ICTR

    1. COMPLICITY IN THEORY

      Complicity as defined by the Tribunals refers to "all acts of assistance or encouragement that have substantially contributed to, or have had a substantial effect on, the completion" of a crime within the jurisdiction of the Tribunal. (13) In international criminal law, the three essential elements of complicity are (1) the commission of a crime; (2) the accomplice's--one who is complicit--material contribution to the commission of that crime; and (3) the accomplice's intention that the crime be committed, or the accomplice's reckless disregard for the potential of its commission. (14) The elements of this third requirement are referred to in this Article as the mens rea degrees of "specific intent" and "malice," respectively.

      International criminal law provides for the punishment of accomplices. (15) For instance, the Nuremberg Principles recognize that complicity in the commission of a crime against humanity or a war crime is a crime under international law. (16) Since the Nuremberg Trials, international criminal efforts have frequently focused as much on those in leadership positions, such as Hermann Goring or Julius Streicher (17) who are, technically speaking, just accomplices, (18) as on the physical perpetrators-those who perform the actual action that results in death or injury to the victim. As the ICTY Appeals Chamber suggested in reference to this distinction:

      Although only some members of the group may physically perpetrate the criminal act ... the ... contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows then that the moral gravity of such participation is often no less--or indeed no different--from that of those actually carrying out the acts in question. (19) Indeed, according to Professor Schabas:

      Complicity is sometimes described as secondary participation, but when applied to genocide, there is nothing "secondary" about it. The "accomplice" is often the real villain, and the "principal offender" a small cog in the machine. Hitler did not, apparently, physically murder or brutalize anybody; technically, he was "only" an accomplice to the crime of genocide. (20) Nevertheless, Hitler was in every sense the person most responsible for the Holocaust. Therefore, the drafters of the Genocide Convention recognized that it was essential to include "a provision authorizing prosecution for complicity" in order to capture "those who organize, direct or otherwise encourage genocide but who never actually wield machine guns or machetes." (21) In other instances, however, the accomplice to genocide may be a subsidiary villain and may lack the genocidaire's specific genocidal intent. Instead, genocide may merely be a foreseeable result of his actions. That is, the complicity provisions of the Genocide Convention and the Statutes of the ad hoe Tribunals appear designed to capture two very different classes of criminals: those who planned genocide but did not kill, and those who lacked a genocidal plan, but knew that genocide was the foreseeable result of...

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