با توجّه به ماهیّت جمعی جرایم بینالمللی، تحریک به ارتکاب جرم، نقشِ مهمی در تهییج و تشویق افراد به همسویی و همراهی با ارتکاب جرایم بینالمللی دارد. در تحریک به جرایم بینالمللی تفکیکی که در اساسنامهی دادگاههای بینالمللی مشاهده میشود، تفکیک بین تحریک به ارتکاب جرم بینالمللی و تحریک علنی و مستقیم به نسلکشی است. این تفکیک این سؤالها را به ذهن متبادر میسازد که چه تفاوتی بین این دو شکل از تحریک وجود دارد؟ و چرا چنین صراحت جداگانهای در جرم نسلکشی وجود دارد؟ این مقاله با بررسی اساسنامهها و رویّههای قضایی بینالمللی به این نتیجه میرسد که تحریک به ارتکاب جرایم بینالمللی به عنوان شکل تبعی از مسئولیّت کیفری است که مستلزم ارتکاب جرم اصلی است، امّا تحریک علنی و مستقیم به ارتکاب نسلکشی به مثابهی جرمی مستقل و از مصادیق خاصّ جرایم مبتنی بر نفرت و نوع خاصّی از سخنرانی نفرتآمیز میباشد که صرفنظر از ارتکاب نسلکشی محقّق میگردد که به دلیل شدّت جرم نسلکشی در قیاس با سایر جرایم بینالمللی و به دلیل نفرتپراکنی و دو قطبی کردن جامعه و دعوت مستقیم و علنی به خشونت علیه گروههای خاص پیشبینی شده است.
عنوان مقاله [English]
Study on Public and Direct Incitement to Genocide in International Criminal Law
Considering the collective nature of international crimes, incitement to commit crimes plays an important role in encouraging people to align and accompany committing international crimes. For this reason, in international criminal law, incitement to commit an international crime has been specified under different titles, without providing a definition in the statutes of international criminal courts. In the statutes of international criminal courts, in addition to instigation to commit a crime, public and direct incitement to commit genocide in Article (p)(3) 4 of the Statute of the ICTY and Article (p)(3) 2 of the statute of the ICTR, Article 25(3) of the Statute of the ICC is specified in the same way as paragraph 3 of Article 3 of the Convention on the Prohibition and Punishment of Genocide in 1948. While in the incitement to genocide, it is mentioned that it must be public and direct, but in the instigation to commit the crime, there is no further description. Therefore, the distinction that can be seen in the statutes of international criminal courts is the distinction between instigation to commit an international crime and public and direct incitement to genocide. The question is, why have the statutes of international criminal courts criminalized direct and public incitement to genocide separately from instigation to commit international crimes? What is the difference between the elements of instigation to commit an international crime and incitement to genocide?
In order to answer the above questions, this article with a descriptive analytical method and by examining international documents and international judicial procedure, firstly, scrutinizes the nature of public and direct incitement to genocide and its relationship with incitement to commit a crime, and then examines the necessary elements to prove the responsibility of public and direct incitement to genocide.
Results and Discussion
According to Article 6 of the Charter of the Nuremberg International Military Court, which Article 5 of the Tokyo Court Charter is exactly similar to it: “…The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) ' Crimes against peace: … (b) ' War crimes: … (c) ' Crimes against humanity… Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan”. Instigation to an international crime entered the international procedure as an international crime for the first time when the Nuremberg Court sentenced Julius Streicher in 1946. Although the term "incitement to genocide" was not yet recognized as such, and the defendant was charged with crimes against humanity, the charge was based on actions that would today be defined as incitement to genocide. In general, instigation is defined as one of the behaviors that lead to individual criminal responsibility in the Charter of the Nuremberg Military Court. This charter does not distinguish between different forms of incitement in different clauses, but in general, it states that the instigators in the formulation or implementation of a joint plan or conspiracy to commit any of the mentioned crimes for all acts committed by persons in the implementation of such a plan will be held responsible.
According to ICTY Statute, Article 7(1): “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.” However, public and direct incitement to genocide is criminalized in Article (p)(3) 4 of the Statute of the ICTY and Article (p)(3) 2 of the Statute of the ICTR.
Article (1) 6 of the Statute of the Special Court of Sierra Leone, which is similar to Articles 7 and 6 of the Statute of the ICTY and ICTR, prompted SCSL to declare in the case of Brima, Kamara and Kanu that the relationship between instigation and the crime committed must be proven, but it is not necessary to prove that the crime would not have occurred without the involvement of the accused to instigation. From the interpretation of the sentence "the relationship between instigation and the crime committed must be proved" it can be concluded that instigation is considered as one of the forms of secondary responsibility in the SCSL, which considers the occurrence of the result as one of the basic elements of the realization of the crime of instigation.
On the other hand, referring to Article 3 of the Convention on the Prohibition and Punishment of Genocide and Paragraph 3 of Article 4 of the Statute of the ICTY and Paragraph 3 of Article 2 of the Statute of the ICTR, in international criminal law, incitement to commit genocide regardless of whether it leads to a criminal outcome as an independent crime must be considered. There is also a difference between clauses B and E of Article 25(3) of the Statute of the ICC regarding inducement to commit an international crime and direct and public incitement to genocide.
Instigation to commit international crimes and public and direct incitement to genocide have many similarities and are often disputed. However, they have distinct characteristics and should be distinguished accordingly. Instigation to commit international crimes is a form of participation in the crime of another person. Instigation to commit international crimes is not a crime in itself. While incitement to genocide is punishable even if genocide did not take place, direct and public incitement to genocide is addressed to the general society, which can ultimately cause an atmosphere of hatred and bipolarity in the society, and it is possible that anyone commits a crime following these public incitements. On the other hand, instigation to commit international crimes is an incitement addressed to a specific person. In order to prove the responsibility of the accused for this international crime of hate crimes (Public and Direct Incitement to Genocide), it is necessary that in addition to being public and direct, and the specific seriousness and specific mens rea required for genocide, the words of the speaker have the potential to lead to a genocide in the society. A capability that can be proven according to the time and place of the speech and the characteristics of the speaker and the audience.