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The Problematic Jurisprudence on Instigation under the Statute of the ICTR: The Consistencies, Inconsistencies and Misgivings of the Trial and Appeal Chambers of the ICTR

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As affirmed by international instruments, instigation is a recognised mode of participation in international crimes. The UN Convention on the Prevention and Punishment of the Crime of Genocide made punishable the inchoate crime of direct and public incitement to commit genocide. The Statute of the International Criminal Tribunal for Rwanda (ICTR) imported this inchoate crime. Furthermore, it included instigation as a mode of participation under Article 6(1) (which would lead to the imposition of criminal responsibility for the crimes). This double appearance of instigation under the Statute of the ICTR has been problematic to both the Trial and Appeal Chambers of the ICTR. Their jurisprudence on instigation is not just flawed, but also inconsistent and does not contribute to the evolution of instigation as a mode of participation in international criminal law.

Affiliations: 1: Lecturer, University of Venda, Thohoyandou, South Africa


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