The Crime of Complicity in Genocide: How the International Criminal Tribunals for Rwanda and Yugoslavia Got It Wrong, and Why It Matters
![handle is hein.journals/jclc98 and id is 929 raw text is: 00914 169/08/9803-0921
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 98, No. 3
Copyright © 2008 by Northwestern University, School of Law Printed in U.S.A.
THE CRIME OF COMPLICITY IN
GENOCIDE: HOW THE INTERNATIONAL
CRIMINAL TRIBUNALS FOR RWANDA
AND YUGOSLAVIA GOT IT WRONG, AND
WHY IT MATTERS
DANIEL M. GREENFIELD*
Jurists at the International Criminal Tribunals for Yugoslavia and Rwanda
have erroneously determined that complicity in genocide is identical to
aiding and abetting genocide. Accordingly, they theorize that complicity
in genocide is not a crime itself, but merely a misplaced and superfluous
liability provision for the crime of genocide. In reality, the two crimes are
distinct and designed to capture very different perpetrators. One guilty of
aiding and abetting genocide had as his very purpose the facilitation of the
commission of genocide. A perpetrator of the crime of complicity in
genocide, in contrast, may not have had genocide as his purpose. Instead,
genocide may merely have been the foreseeable result of his actions. As
such, one found guilty of aiding and abetting genocide must have the
heightened, and difficult to establish, mens rea of the genocidaire-what I
term the specific intent specific motive nexus. By comparison, one guilty
of complicity in genocide need not have this heightened mens rea. Instead,
a lesser mens rea such as malice or what I term the specific intent without
specific motive, should suffice to attach guilt. Failure to appreciate this
difference creates a gaping loophole in international criminal law,
providing unwarranted sanctuary to those who enable genocide.
I. INTRODUCTION
The Convention on the Prevention and Punishment of the Crime of
Genocide1 (Genocide Convention) arose from the ashes of the Holocaust.
J.D. 2008, Northwestern University School of Law. The author wishes to thank
Northwestern University Professors David Scheffer and Bridget Arimond for their
invaluable guidance and assistance.
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,
102 Stat. 3045, 78 U.N.T.S. 277 [hereinafter Genocide Convention].](ViewImageLocal?handle=hein.journals/jclc98&div=28&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most