Abstract
The inchoate crime of direct and public incitement to commit genocide was first recognised under the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The creation of the crime was a direct result of the horrific effects of acts of incitement before and during the Second World War. Today the crime is firmly established under international law and is also criminalised in many domestic legal systems. History shows that incitement to crime and violence against a specific group is a precursor to and catalyst for acts of genocide. Consequently, the goal of prevention lies at the core of the prohibition of direct and public incitement to genocide. However, it may be said that this preventative objective has thus far been undermined by a general lack of prosecutions of the crime, especially at the domestic level. This prosecutorial void is rather conspicuous in the light of the new vision of international criminal justice under which domestic legal systems (including that of South Africa) bear the primary responsibility for the enforcement of the law of the Rome Statute of the International Criminal Court (Rome Statute), which in Article 25(3)(e) includes the crime of direct and public incitement to commit genocide. This article provides a brief historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda (ICTR). Thereafter it examines the criminalisation of incitement to genocide in contemporary South African law in order to assess South Africa’s capacity to prosecute incitement to genocide at the domestic level. In this regard there are, in theory, various 'legal avenues' for the prosecution of incitement to commit genocide in South Africa, namely: as a crime under the Riotous Assemblies Act 17 of 1956; as a crime under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act); or as a crime under customary international law pursuant to section 232 of the Constitution of the Republic of South Africa, 1996. The article reflects critically on the viability of prosecuting incitement to genocide in terms of each of these alternatives. The article highlights a number of practical and legal problems as regards the prosecution of incitement to commit genocide under the Riotous Assemblies Act as well as under customary international law. It is argued that the prosecution of incitement to genocide in terms of the ICC Act is preferable, as this would respond directly to an international consensus as regards the unique and egregious nature of genocide by providing for a limited form of extraterritorial criminal jurisdiction. Prosecution under the ICC Act would also reflect the objectives of the Rome Statute pursuant to which South Africa has certain international legal obligations. However, it is submitted that legislative amendment of the ICC Act is needed, since the crime is not explicitly provided for thereby at present. It is submitted that the legislative amendment must provide for the distinct crime of direct and public incitement to genocide in terms of South African criminal law. Such an amendment will remove the existing legal obstacles to the domestic prosecution of incitement to genocide and enable effective prosecution thereof at the domestic level. The proposed amendment will have the effect of strengthening the alignment between South African law and the objectives of the Rome Statute and may have preventative benefits in the long run.
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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