Abstract
The Prosecution of Incitement to Genocide in South Africa
Highlights
HJ van der Merwe*The phenomenon of collective violence1 is complex and, as yet, not wholly understood.2 This notwithstanding, the incidence of collective violence is not entirely unpredictable
It is submitted that the amendment of existing national legislation, namely, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, to provide for a separate statutory offence of direct and public incitement to commit genocide will remedy this defect
The interpretation of direct and public incitement to commit genocide under the Rome Statute remains to be clarified by the ICC as no person has yet been charged under article 25(3)(e) of the Statute. Considering that it took ten years for the ICC to hand down its first conviction,82 it seems safe to conclude that it is unlikely that the ICC will provide any guidance to South African courts in the very near future as to the scope of direct and public incitement to commit genocide under the Rome Statute
Summary
The phenomenon of collective violence is complex and, as yet, not wholly understood. This notwithstanding, the incidence of collective violence is not entirely unpredictable. Hate speech is neither prohibited under the Convention on the Prevention and Punishment of the Crime of Genocide (1948) (hereafter the Genocide Convention), nor under the Rome Statute of the International Criminal Court (hereafter the Rome Statute).. Hate speech is neither prohibited under the Convention on the Prevention and Punishment of the Crime of Genocide (1948) (hereafter the Genocide Convention), nor under the Rome Statute of the International Criminal Court (hereafter the Rome Statute).6 In this regard, a distinct and egregious form of hate speech, namely, direct and public incitement to commit genocide, represents a recognised exception. A distinct and egregious form of hate speech, namely, direct and public incitement to commit genocide, represents a recognised exception It is firmly established as an international crime under the Genocide Convention and the Rome Statute as well as under customary international law.. It is submitted that the amendment of existing national legislation, namely, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (hereafter the ICC Act), to provide for a separate statutory offence of direct and public incitement to commit genocide will remedy this defect
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