Articles |
‘Complicity in Genocide’ versus ‘Aiding and Abetting Genocide’
Construing the Difference in the ICTR and ICTY Statutes
1 LLB, LLM; of the Bar of Ontario; Senior Legal Officer, International Criminal Tribunal for Rwanda; formerly Prosecution Counsel, International Criminal Tribunal for Rwanda; formerly Head Legal Officer in the Appeals Chamber, International Criminal Tribunal for Rwanda. This paper draws from the book in progress: Engaging Questions: The Development of International Criminal Law at the International Criminal Tribunals for Rwanda and for the former Yugoslavia. The views expressed in this paper are purely those of the author.
The Statutes of both the ICTY and ICTR contain two notable provisions on responsibility for genocide: ‘complicity’ in genocide and ‘aiding and abetting’ genocide. The jurisprudence of the two Tribunals shows some difficulty in the appreciation of the significance of these two concepts in relation to each other. This difficulty has led some of the Judges to find a state of redundancy between the two concepts. Other Judges who have not found the two terms redundant have found themselves embroiled in a morass of legal reasoning in their effort to find a difference between the two notions and thereby give meaning to both. The common difficulty faced by the two judicial schools arises from a tendency to dwell upon the qualitative meanings of the two notions.
In this essay, the case is made that there is a distinction between the two concepts. That distinction is rooted, however, not in their qualitative meanings, but in a simple appreciation of the objective which each concept is designed to serve in its own textual locale. The objective of the provision on ‘complicity’ is to nominate a crime in substance, while the objective of the provision on ‘aiding and abetting’ is to prescribe a mode of attributing responsibility for the crimes substantively nominated elsewhere in the Statute.