NCJ Number
226172
Journal
Journal of Criminal Law and Criminology Volume: 98 Issue: 3 Dated: Spring 2008 Pages: 921-952
Date Published
2008
Length
32 pages
Annotation
This article develops the argument that jurists at the International Criminal Tribunals for Yugoslavia and Rwanda erred in determining that “complicity in genocide” is identical to “aiding and abetting” genocide.
Abstract
These two crimes are distinct and designed to capture different types of perpetrators. An individual guilty of aiding and abetting genocide was involved in facilitating the commission of genocide. In contrast, a person who is complicit in genocide may have engaged in actions whose foreseeable results may have contributed to genocide, but without the personal intent to commit genocide. Consequently, persons found guilty of aiding and abetting genocide must be proven to have had the intent that their actions would contribute to genocide. This involves what the author calls “specific intent specific motive nexus.” On the other hand, a person guilty of complicity in genocide need not have this link between an action and the intent of the action; “specific intent without specific motive” is sufficient for a conviction of complicity. Failing to make this distinction reduces the criminal liability for actions committed without the conscious intent of providing assistance in committing genocide. As a result, an important deterrence mechanism is lost. In order to punish and deter the crime of genocide in compliance with the purpose of the Genocide Convention and the Statutes of the ad hoc Tribunals, complicity in genocide must be recognized as a stand-alone crime. Only by extending criminal liability to the political actors, arms brokers, and states that contribute to genocide, albeit without the conscious intent of causing genocide, can the promises of the Genocide Convention be fulfilled. 87 notes