Chicago Journal of International Law
and the ICTR Statute does so in Article 2(3)(c).52 Complicating the picture with
respect to treaty law, however, is the Rome Statute’s treatment of incitement. 53
Unlike the Genocide Convention and the ICTY and ICTR Statutes, the
Rome Statute does not adopt the exact language of the previous treaties on
incitement. Article 25 of the Rome Statute states, “In accordance with this Statute,
a person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court if that person . . . [i]n respect of the crime of
genocide, directly and publicly incites others to commit genocide.”54 Article 25 is
entitled “Individual criminal responsibility” and outlines the rules around various
modes of liability. 55
Notwithstanding incitement’s placement in Article 25, the Commentary on
the Law of the International Criminal Court (CLICC) takes the position that
incitement to genocide is a crime under the Rome Statute, not a mode of liability.
CLICC editor Mark Klamberg writes;
Article 25(3)(e) of the ICC Statute criminalises direct and public incitement
of others to commit genocide. It is in substance identical to Article III(c) of
the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide, and the ICTY and ICTR Statutes. Genocide is the only
international crime to which public incitement has been criminalised. The
reason for this provision is to prevent the early stages of genocide even prior
to the preparation or attempt thereof.56
W.K. Timmermann concurs with this position, writing that incitement “has of
course been unequivocally recognized” as a crime.57
At least one commentator has contended that incitement’s inclusion in
Article 25 converted it from a crime to a mode of liability.58 Thomas Davies argues
the Rome Statute “makes a crucial departure from earlier instruments with respect
to genocide” and “denies incitement the status of an independent crime, and
instead presents it as a type of individual criminal responsibility for genocide.”59
As Davies notes, Article 5 is entitled “Crimes within the jurisdiction of the Court”
and makes no mention of incitement.60 This approach finds further support in
52
53
54
55
56
57
58
59
60
ICTR Statute, supra note 37, at art. 2(3)(c); ICTY Statute, supra note 37, at art. 4(3)(c).
See Rome Statute, supra note 29, at art. 25(3)(e).
Rome Statute, supra note 29, at art. 25(3)(e).
Id. at art. 25.
See Mark Klamberg, Article 25: Individual Criminal Responsibility, in COMMENTARY ON THE LAW OF
THE INTERNATIONAL CRIMINAL COURT 261, 271 n.272 (Mark Klamberg ed., 2017) [hereinafter
CLICC].
See W.K. Timmerman, Incitement in International Criminal Law, 88 INT’L R. RED CROSS 823, 846 (2006).
See Davies, supra note 48, at 245.
Id. at 260.
Rome Statute, supra note 29, at art. 5.
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