M.3. The perpetrator intended to directly and publicly incite to commit genocide.

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, para. 3338:

"3338. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide pursuant to Article 2(3)(c) of the Statute if he directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea). Direct incitement to commit genocide requires the speech to be a direct appeal to commit an act referred to in Article 2(2) of the Statute; it has to be more than a vague or indirect suggestion."

Prosecutor v. Justin Mugenzi and Prosper Mugiranez, Case No. ICTR-99-50-A, Judgement (AC), 4 February 2013, para.135:

"135. The Appeals Chamber further recalls that the mens rea for the crime of direct and public incitement to commit genocide is the intent to directly and publicly incite others to commit genocide. Such intent in itself presupposes that the perpetrator possesses the specific intent for genocide. The Trial Chamber found that Sindikubwabo possessed both genocidal intent and the intent to directly and publicly incite genocide. While the Trial Chamber did not expressly conclude that Mugenzi and Mugiraneza had the requisite intent to directly and publicly incite others to commit genocide, it found that they possessed the “same genocidal intent held by Sindikubwabo”. The Appeals Chamber is satisfied that, when read in context, this finding shows that the Trial Chamber considered that Mugenzi and Mugiraneza possessed both genocidal intent and the intent to incite. The Trial Chamber’s findings in this respect as well as its reference to the definition of the crime of direct and public incitement indicate that it was aware of the legal requirement set out above."

M.3.1. The perpetrator meant to engage in the direct and public incitement to commit genocide

M.3.1. ICC

M.3.2. ICTY

M.3.3. ICTR

The Nahimana, Barayagwiza and Ngeze Appeals Chamber found that:

"A person may be found guilty of the crime specified in Article 2(3)(c) of the Statute if he or she […] had the intent directly and publicly to incite others to commit genocide (the intentional element or mens rea). Such intent in itself presupposes a genocidal intent."[1]

The Ruggiu Chamber confirmed:

"The person who incites to commit genocide must himself have the specific intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnic, racial or religious group, as such."[2]

 

M.3.2. The perpetrator meant to cause direct and public incitement to commit genocide; OR

M.3.2.1. ICC

M. 3.2.2. ICTY

M. 3.2.3. ICTR

As stated in the Akayesu case:

"The mens rea for the crime of direct and public incitement to commit genocide […] lies in the intent to directly prompt or provoke another to commit genocide […] the person who is inciting genocide must have himself the specific intent to commit genocide[…]"[3]

M.3.3. The perpetrator was aware that direct and public incitement to commit genocide would occur in the ordinary course of events.

M.3.3.1. ICC

M. 3.3.2. ICTY

Referring to the Chamber’s statement, the Krstić Appeals Chamber specified that:

"This principle applies to the Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent. The conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal."[4]

M. 3.2.3. ICTR

This, however, was rejected by the Musema Chamber:

"As far as genocide is concerned, the intent of the accomplice is thus to knowingly aid or abet one or more persons to commit the crime of genocide. Therefore, the Chamber is of the opinion that an accomplice to genocide need not necessarily possess the dolus specialis of genocide, namely the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. […] [A]n accused is liable for complicity in genocide if he knowingly and voluntarily aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such."[5]